James R. Balmforth: Can You Go To Jail For Adultery?

Adultery impacts thousands of Utah marriages each year. Many of these marriages will end in divorce. In many states, adultery can determine whether a spouse is eligible for alimony and can affect property division as well.

In Utah, adultery is defined as a married person having sexual intercourse voluntarily with someone other than that person’s spouse. Adultery is taken very seriously under Utah law and is a misdemeanor criminal offense. Utah courts will consider adultery when determining whether and how much alimony to award, but it’s not a factor when dividing the couple’s property. If you believe your spouse should not receive alimony because of an affair, you will need to gather evidence to prove that the affair occurred this can include phone records, credit card or bank statements, and any other evidence that shows your spouse was unfaithful. Proving this in court can be complicated, so it’s best to consult a family law attorney in your area to see if you will be able to prove your spouse’s adultery. Often, during a marriage, one spouse becomes financially dependent on the other. Many marriages today have two working spouses, but most still involve some sort of division of labor, where one spouse is responsible for earning more income, while the other spouse is more responsible for taking care of the household or children.

Does Adultery Impact Alimony?

If the judge believes you have proven that your spouse was unfaithful, and that infidelity led to the breakup of the marriage, the court may deny alimony to your spouse. It’s not the only factor – it’s just 1 of many the court considers. The adultery has to be a major cause for the breakup of the marriage for it to prevent an unfaithful spouse from receiving alimony in the divorce. If your spouse was unfaithful, but you forgave your spouse and continued to live together for a significant time after the affair, the court won’t consider the adultery when deciding alimony. And if you have also had an affair, the court you likely won’t be able to prevent your spouse from receiving alimony because of your spouse’s affair. In Utah, adultery doesn’t directly impact property division in a divorce. If a spouse spent a significant amount of the couple’s money on an affair, however, the court may give the faithful spouse a larger share of the couple’s property to compensate for the lost money. If you believe you should receive a larger share of property because of your spouse’s spending on an affair, you should gather receipts and financial statements to show how and when your spouse spent the marital assets. Utah doesn’t consider adultery when deciding child custody or visitation. The only exception is if the behavior displayed during the affair shows a spouse’s inability to take care of the children. Adultery is considered a crime in 21 states, including Utah, though it is rarely prosecuted. The state of Utah treats adultery as a class B misdemeanor criminal offense.

Impact of Adultery on Alimony

Alimony refers to payments made from one spouse to another when there is some degree of financial dependence on one party. As part of a divorce, the court can order the spouse who makes more money to make payments to the spouse making less money. If it can be proven that a spouse was unfaithful and that the adultery resulted in the end of a marriage, alimony may be denied to the spouse seeking payment. This only matters when the act of adultery was a major cause of the end of the marriage. When one spouse forgives the other or when both spouses forgive each other for acts of infidelity, adultery will not factor into any alimony discussions. Adultery may be considered when it comes to child custody claims in a divorce, but not always. Adultery only plays a factor in these matters when the circumstances of the infidelity demonstrate some issue with the moral standards of the spouse and their ability/fitness to be a parent. In addition to alimony payments and potential impact on child custody, there may be some other issues to consider in a divorce. This could include financial losses to the couple or the other spouse as part of the extramarital affair, obtained or received property related to the adultery, and so forth.

Adultery is grounds for divorce in Utah. However, in order to obtain a Decree of Divorce, you need only establish that you and your spouse have irreconcilable differences. This no-fault divorce law allows parties to get divorced for virtually any reason. Establishing adultery will not help you get divorced faster or otherwise alter the divorce process. Infidelity rarely alters the outcome of a divorce in any significant way. However, when the court divides marital property and awards alimony, adultery may help tip the scales in favor of the non-offending party. Utah courts are instructed to consider all relevant facts and equitable circumstances. In addition, Utah courts are permitted to consider fault when calculating alimony. Adultery may also impact custody and parent-time decisions. Past moral conduct is one of the factors the court may consider in determining who should be deemed the primary custodial parent. Moreover, Utah courts strive to place children in the most stable environment available. New relationships that have not withstood the test of time place the child at risk of further change in the future. Long hours spent away from the marital home may indicate to the court a lack of bond between parent and child and an inability to place the child’s needs above personal needs.
Adultery is rarely prosecuted as a criminal offense, but when it is, the arbitrariness of enforcement erodes confidence in the rule of law and unfairly singles out those blindsided by the charge.

More common than criminal prosecutions for adultery are job terminations, sanctions or demotions. The military can discharge or prosecute soldiers for infidelity, and courts have permitted dismissals or discipline of police officers, librarians, fire department employees, and FBI trainees based on marital infidelity that had no demonstrable connection to their job performance. Adultery also figures as a factor in allocating property and custody in divorce cases, although it isn’t necessarily relevant to parental fitness or financial need. A few states even permit aggrieved spouses to sue paramours for alienation of affection. In another celebrated 2010 case, a jury ordered a woman who had broken up a long-standing marriage to pay $9 million in damages. There is no evidence that a decline in legal sanctions would result in an increase in adultery. According to the best available research, somewhere between 19% and 23% of men, and 14% to 19% of women report being unfaithful at some point in their marriage, a rate substantially lower than in 1950 when Alfred Kinsey conducted the first studies. Legal prohibitions persist largely for symbolic reasons. Most Americans typically between two-thirds and three-quarters of those surveyed don’t think adultery should be a crime. Most unenforced criminal laws survive in order to satisfy moral objections to our established modes of conduct. They are unenforced because we want to continue our conduct, and unrepeated because we want to preserve our morals. Some might say that Utah is backwards, a little too old fashioned for these modern times. After all, some think, as long as sexual intercourse occurs between two consenting adults, what it matters if one of the parties was married at the time? If the parties were separated and/or had filed for divorce beforehand, what does it matter if one spouse was unfaithful?

The reason to care about adultery is because once adultery enters in to the picture in Utah divorce, there can be legal consequences. Alimony is awarded to the spouse that was financially dependent on the other, such as (but not only) the stay-at-home parent or the spouse who worked part-time to be home more to tend to the household and/or children.

There are several factors considered when awarding alimony, and one of those can be “fault,” and fault includes “engaging in sexual relations with a person other than the party’s spouse”. If you can prove that it “substantially contributed to the breakup of the marriage relationship.” Remember also that in Utah alimony rarely, if ever, awarded or withheld to punish a wayward spouse. It is possible for one to have committed adultery and still receive alimony. It is possible for one to have committed adultery and not be ordered to pay alimony. The core function of alimony is economic, and it should not operate as a penalty against the payer nor a reward to the recipient; for that reason, regardless of the payer spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.

The trial court was not required to take into account the wife’s adultery in calculating either the duration or the amount of the alimony award to the wife, even though statute allowed the court to consider fault in making such determination; the purpose of divorce proceedings was not to impose punishment on either party. If there has been brutality or real cruelty, punitive elements enter and wife is entitled to have that taken into consideration in fixing alimony in divorce case. The purpose of alimony is to provide support for the wife and not to inflict punitive damages on the husband. Alimony is not intended as a penalty against the husband nor a reward to the wife. Adultery can also be considered as a moral character factor when deciding child custody and parent-time considers “past conduct and moral standards of each party.”), although in today’s moral climate adultery appears to be less and less of a factor in child custody and parent-time determinations. Moral standards are a statutory consideration, and may be relevant to a custody determination to the extent they affect the children’s best interests. As we have mentioned earlier, people tend to overestimate the importance of adultery and infidelity in marriages. Certainly, there are occasional cases when the fact that one of the spouses engaged in extra-marital affairs will result in an unequal division of property or the unfaithful payer will be ordered to pay more alimony, but these cases are rare.

In the state of Utah, courts ensure a fair division of property between both spouses. However, there may be exceptions when misconduct or certain acts or omission to act on the part of one of the spouses results in a slightly unequal division of property. But infidelity is usually not one of the acts that will be considered when determining alimony or dividing property unless it played a substantial role in the dissolution of the marriage. Infidelity on the part of the payer may, however, result in a slightly greater alimony or extend the duration of alimony in some cases. “But it would be out of the extraordinary if the court took the coupe’s entire house away from the unfaithful spouse or something of this sort. In order to understand the impact of extra-marital affairs and adultery on the outcome of divorce, it is vital to learn how family courts in Utah divide marital property. As a general rule, the family court will accept a fair and reasonable property division if both spouses agree to it. But if no consensus can be reached without the involvement of the family court, both parties can hire a Utah property division attorney to ensure that marital property is divided between the two spouses fairly and equitably. When dividing property between the spouses, courts exercise discretion as opposed to being guided by a set of rules for property division. Even though judges enjoy discretion when dividing property in a divorce, certain factors will be taken into account, including but not limited to the length of the marriage and who of the spouses played a bigger role in acquiring and maintaining the property. Infidelity and adultery are usually not considered by courts. A judge will also consider the financial condition and needs of each spouse after the divorce, as well as each party’s ability to produce income and afford the cost of living. After considering all of the above-mentioned and other factors, property may be divided either equally or unequally.

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