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Feb 16, 2023

Does a cheating spouse lose rights in a divorce?

Divorce in PA

The simple answer is no, not really. The Divorce Code in Pennsylvania provides a list of seventeen (17) factors that determine the award of alimony and the duration of alimony payments.

When it comes to divorce, a common question is whether a cheating spouse loses their rights. Unfortunately, while the answer may seem straightforward, the truth is more complex.

In this article, we’ll explore the impact of cheating on divorce in Pennsylvania, including the factors considered when awarding alimony and dividing assets.

Understanding Alimony in Pennsylvania Divorce

According to Debbie Y. Schneider, Esq., a divorce attorney at Alpha Center for Divorce Mediation, alimony is designed to provide additional cash flow from the higher-earning spouse to the lesser-earning spouse to assist with everyday living expenses.

As a result, it is necessary for many divorces. However, it is not considered an automatic right, and the award and duration of alimony payments are determined based on a variety of factors, including:

  • Length of the marriage
  • The earning capacity of each spouse
  • The standard of living established during the marriage


Types of Alimony in Pennsylvania

There are technically only two types of alimony in Pennsylvania: pendente lite (pre-divorce) and post-divorce alimony. 

However, two other forms of payments between spouses, namely spousal support and equitable reimbursement, are commonly referred to as alimony.

Pendente Lite Alimony

Pendente lite alimony in Pennsylvania is a temporary payment one spouse must pay to the other while the divorce is in process. The purpose of pendente lite alimony is to allow the receiving spouse to participate in the divorce proceedings, maintain the standard of living they’re used to, and provide income, so the spouse doesn’t become economically disadvantaged. 
(Note: Pendente lite alimony doesn’t affect whether or how much alimony is awarded post-divorce).


Post-Divorce Alimony

Pennsylvania courts award post-divorce alimony only when it is deemed “necessary.” To decide whether it’s necessary, the judge must evaluate a list of factors, including the duration of the marriage, the earning capacity of each spouse, and the standard of living established during the marriage. 

A judge will typically award alimony when one spouse isn’t able to support themselves through employment, and the paying spouse can make the payments. 

The overall goal is to ensure that the supported spouse doesn’t need support from the state, regardless if there are any irreconcilable differences.


Spousal Support (Form of Payment)

Pennsylvania law requires spouses to support one another if they can do so. Spousal support is typically requested when spouses have separated but not filed for divorce. 

The purpose of spousal support is to enable the receiving spouse to afford reasonable and necessary living expenses. 

(Note: A spousal support order cannot be in place simultaneously as an order for alimony pendente lite).


Equitable Reimbursement (Form of Payment)

When one spouse supports the family while the other goes to school or gets additional training, and the parties divorce before the benefit of the additional education is realized, it can be unfair to the supporting spouse. In such cases, Pennsylvania judges can reimburse the supporting spouse to compensate them for their contributions. 

Unlike alimony, the goal of equitable reimbursement is not to meet the supporting spouse’s needs after the divorce. Instead, the judge will consider whether the supporting spouse received any benefit of the other’s increased earning capacity and may order periodic payments as fair under the circumstances.


The Impact of Cheating on Alimony in Pennsylvania

Many people believe cheating will automatically disqualify a spouse from alimony payments. However, under Pennsylvania law, this is not the case. The state’s Divorce Code outlines seventeen factors considered when determining whether to award alimony and how much should be paid.

While marital misconduct is one of these factors, it is not the only one and is not given any special weight.


The Impact of Cheating on Asset Division in Pennsylvania

While cheating may not directly impact alimony and any marital property, many people wonder whether it will affect the division of assets in a divorce.

However, under Pennsylvania law, the equitable distribution process, which splits the assets and liabilities in a divorce, does not refer to misconduct or cheating. This means a spouse’s infidelity will not impact the division of assets and debts.


Child Custody and Support

It’s important to note that child support and child custody are separate issues, and one parent’s failure to pay child support does not affect their right to custody or visitation. Similarly, a parent cannot refuse to allow the other parent to have visitation because of a failure to pay child support.


Child Custody

In Pennsylvania, child custody is divided into two categories: physical custody and legal custody. 

Physical custody refers to where the child lives, while legal custody refers to the right to make important decisions about the child’s welfare, such as education, religion, and medical care.

Pennsylvania courts encourage parents to work together to create a custody agreement that meets the best interests of the child or alleviate child custody issues. 

If the parents are unable to reach a favorable divorce settlement, the court will determine custody based on the following factors: 

  • The child’s relationship with each parent
  • The child’s preference (if they’re old enough)
  • The ability of each parent to care for the child

In some cases, the court may appoint a custody evaluator or guardian ad litem to gather information and provide recommendations to the court. Ultimately, the court will make a custody determination that it deems to be in the best interests of the child.


Child Support

Child support is financial support paid by one parent to the other for the benefit of the child. In Pennsylvania, child support is determined based on the state’s child support guidelines, which take into account each parent’s income, the number of children, and other relevant factors.

The court may also consider additional factors, such as the child’s special needs or expenses, when determining the amount of child support. 

Once child support is established, it may be modified if there is a significant change in circumstances, such as a change in income or custody arrangement.


Can Adultery Affect Child Custody in Pennsylvania?

In Pennsylvania, adultery generally does not directly impact child custody determinations. The court’s primary concern in custody cases is the child’s best interests, and it will consider a wide range of factors when determining custody.

However, in certain circumstances, adultery could indirectly impact child custody. For example, suppose the spouse who committed adultery had a relationship with someone who was not a suitable caregiver for the child or has a history of domestic violence. In that case, this could be a factor in the court’s custody determination.

Similarly, if the adultery caused significant emotional harm to the child or if the adulterous conduct harmed the parent’s ability to care for the child, the court may consider this information when making its custody decision.

(Note: the court will not make a custody decision based solely on allegations of adultery. Instead, the parent alleging adultery must present evidence that the adultery directly impacted the child’s well-being or the parent’s ability to provide appropriate care for the child.)


Looking Forward, Not Back

Divorce attorneys at Alpha Center for Divorce Mediation, we encourage our clients to look forward, not back, when it comes to their divorce. While emotional factors like cheating may concern some, they do not carry significant weight in divorce.

In fact, the Divorce Code explicitly states that the divorce court will not consider the marital misconduct of either party after the date of final separation in its determinations relative to alimony.


Final Words

While cheating may be a factor in some divorces, it is not given any particular weight under Pennsylvania law. Instead, the court considers a wide range of factors when determining the award of alimony and the division of marital assets.

At the end of the day, the cheating spouse and the spouse cheated on should focus on moving forward and building a new life after their divorce.

Have Questions? Reach our Attorney Experts!

Alpha Center for Divorce Mediation
Email: alphacares@alpha-divorce.com
Phone: 1-800-310-9085

About the author

Debbie Y. Schneider, Esquire

Ms. Schneider was born and raised in the Midwest. She is a graduate of the Villanova University School of Law. She has many years of experience practicing in all areas of matrimonial law, including working for judges presiding over all phases of family court matters.