Divorce FAQ

Adultery

In more than 20 states, adultery remains a crime for which one can be prosecuted by the local district attorney. Although few people are prosecuted under those state laws, the laws do remain on the books and occasionally district attorney offices will bring criminal adultery charges against a citizen. Generally, the statutes provide that punishment will be some jail time or a fine. Most cases plead out, however, and the most severe consequence to the "criminal" is the embarrassing publicity. Some commentators believe that if a person prosecuted under a state's anti-adultery law were to take the case to the Supreme Court, anti-adultery laws may follow the route of the anti-sodomy laws declared unconstitutional in 2003 by the Supreme Court.

Adultery and the military

While the Code, which regulates the behavior of military personnel, does not specifically outlaw adultery, it does prohibit, "all disorders and neglects to the prejudice of good order and discipline in the armed forces [and] all conduct of a nature to bring discredit upon the armed forces . . . ." Many individuals in the military have been disciplined based on this provision, even recently, despite arguments that, like state laws against adultery, it is often applied unevenly and in a way that does not necessarily promote "good order..."

Adultery as grounds for divorce

Until about 50 years ago, when states began to pass "no-fault" divorce legislation; those wishing to obtain a divorce were required to prove the facts that would establish a legal basis, or "grounds" for divorce under state statutes. While most states provided that abuse or abandonment as well as adultery could constitute grounds, in some states, adultery was the only legal grounds for divorce. Since the 1950's, most states have passed "no-fault" divorce laws, repealing laws that required a proof of a spouse's wrongdoing prior to allowing divorce. Some states, however, passed "no-fault" laws while retaining the "fault" provisions, allowing a party to choose between filing for a "no-fault" divorce and actually naming the wrongdoing under the old "grounds."

Adultery as cause for divorce

While adultery is often cited as the cause of divorce, many mental health professionals disagree, and contend instead that adultery is just one symptom of a failing marriage. In fact, some studies show that the majority of marriages affected by adultery would have ended in divorce regardless of whether the adultery occurred, and that the adultery was not reason for the marriage ending in divorce. On the other hand, surveys also show that many whose spouses have cheated on them feel that the adultery had an extremely deleterious effect on the marriage. In addition, while the spouses do not divorce, the marriage is often extremely unsatisfactory for either of them.

Saving Marriage?

Numerous groups, both faith-based and secularly derived, have established programs with the mission of saving troubled marriages. One example is "Marriage Encounter," a program that was initiated decades ago in the Catholic Church and has spread to other denominations. The Marriage Encounter model utilizes peer relationships and both couples-only and group work to help couples re-commit to their marriage. Many couples attest that they have healed, even from the emotionally devastating consequences of infidelity, and gone on to help others do the same.

Conclusion

In nearly every culture, adultery has been considered a "wrong," sometimes only morally and ethically, but often even criminally. These attitudes certainly continue to exist in the United States today as evidenced by some state laws continuing to criminalize adultery, other state laws that allow petitioners in divorce actions to cite adultery as legal grounds for the action, and military law which gives rise to disciplinary action against military personnel who have been found committing adultery. It is no wonder that a marriage can be so negatively affected by adultery. Many people, however, believe that with the commitment of the parties and assistance from others, their marriage can be put back together.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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What is the process for obtaining a divorce?

How is property divided?

How are debt and other liabilities and obligations divided?

How is alimony, or spousal support or maintenance determined?

Who will win custody of the children?

All about Alimony

What is it?

Alimony actually comes in different forms. Most people are familiar with the payments that the court orders a wealthier spouse to make to a less well-off spouse following a divorce. This is called permanent alimony. There is also temporary alimony which is support given while the divorce is pending and rehabilitative alimony which are payments made long enough for the recipient spouse to become self-supporting. Rehabilitative alimony can help the less wealthy spouse to receive the education or training needed to produce his or her own income.

Who gets it?

Whether or not you will receive alimony depends on the laws in your state and what the courts have determined. Each state can consider different factors to determine if one spouse should receive support. The courts generally have discretion to decide what would be fair under the circumstances. In the past, women were most often the recipients of spousal support but men can get alimony too. The most important factor that the courts consider is probably the relative wealth of the parties and their ability to support themselves.

When deciding whether to award alimony, many courts will also consider misconduct by the parties. Adultery by the person who is seeking alimony payments could be part of the court's consideration. Even in states that only allow divorces on no-fault grounds (meaning you do not need to show that your spouse did anything wrong in order to get a divorce) fault by one of the parties is often a factor when determining whether alimony payments should be made and how much. Although the purpose of alimony is to prevent the divorce from causing a financial injustice to one party, some courts may view alimony as a way to compensate a spouse for a wrong that was done to them.

How much?

The amount of alimony will depend on the financial standing of the parties and many other factors. Under many state laws, there are certain factors that a court must consider when they make an award of alimony. Many states consider the following factors; the age, health, and financial condition of the spouse seeking support, the training or education needed for that spouse to become self-sufficient and how long it would take, the standard of living that the spouse is accustomed to, the length of the marriage, and the ability of the paying spouse to support himself or herself while also supporting the spouse. Courts generally have a great deal of discretion in determining the amount of alimony.

How long?

How long payments will be made depends on the type of alimony involved. Temporary alimony is meant to last until the divorce is final. Rehabilitative alimony is provided long enough for the recipient-spouse to become self-sufficient. The court usually determines in advance how long it thinks this will take. Permanent alimony could be ordered to continue indefinitely. Permanent alimony usually stops if the recipient remarries or if the spouse who is paying dies, but that is not always the case. Sometimes the estate of the deceased will still be required to pay the spouse. In general, when the financial circumstances or other conditions change for either party the parties can seek a modification of the alimony decree.

What else should I know?

Some other things to know about alimony are the tax consequences and the common problems that arise. Alimony is taxable income for the person who receives it and is deductible for the person who pays. A prerequisite to receiving alimony is that the parties must live apart. After all, the purpose of alimony is to help the recipient-spouse to pay for his or her living expenses. If the couple lives together then this is unnecessary. Therefore, people must avoid the mistake of living with their former spouse and still considering the payments alimony for tax purposes.

Although many court orders for the payment of alimony are complied with without incident, it is not uncommon for conflicts to arise over the payment of alimony. Disputes often arise about the amount of alimony due and whether or not certain payments were made. These conflicts can be avoided by keeping records of payments made or alimony received. Receipts should be requested for payments made in cash. Records should be kept for at least three year for tax purposes and perhaps longer in case other disputes arise.

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