Cheater, Cheater

When explaining the divorce process, I am frequently confronted with, “My husband/wife cheated on me, doesn’t that mean anything?” (Or alternately, “I am seeing someone else. How will that affect me?”)

The truth is, adultery has little impact in a divorce action. Utah is a no-fault state, which means that the court will award a decree of divorce for virtually any reason or for no reason at all. The petitioner need only assert that the parties have “irreconcilable differences.” (See Utah Code Ann. §30-3-1). Property acquired during the course of a marriage is generally divided equally between the parties. Custody is determined according to the child’s best interests, and child support is calculated pursuant to statutory guidelines.

While the court may consider adultery or other fault in awarding alimony, the primary consideration in an alimony award is the financial conditions of the parties. The court considers (i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; (iv) the length of the marriage; (v) whether the recipient spouse has custody of minor children requiring support; (vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and (vii) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage. (See Utah Code Ann. §30-3-5(8)(a)).

Does this mean that we never include adultery in a divorce petition? Of course not. In determining the division of property and in awarding alimony, the court is instructed to consider “all relevant facts and equitable circumstances.” (See Utah Code Ann. §30-3-5(8)(c)). So in drafting a petition, we must frame the adultery issue as an issue of equity – we must show that the opposing party’s extra-marital relationship has caused injury that should be compensated. Did your spouse incur excessive credit card debt to buy gifts for his/her significant other? If so, it is equitable that he/she be responsible for paying your joint credit card debt.

The domestic court is a court of equity. A good divorce attorney knows how to frame the issues to ensure an equitable result.