Nov 15, 2022
Alimony and Adultery in Pennsylvania
Divorce in Pennsylvania
How does adultery affect a divorce in Pennsylvania? It is an interesting question, but as a divorce mediator, it is one that I do not usually have to address. It is important to understand that adultery may have some implications if you are litigating your divorce, especially when it comes to alimony.
Christine Lombardo-Zaun, Esq., an attorney-mediator at Alpha Center for Divorce Mediation, addresses if and how adultery affects a divorce in Pennsylvania.
Nicholas Wolfinger, a professor of family and consumer studies at University of Utah, gathered research from the last two decades and found that between 20 and 25 percent of married men cheat and between 10 and 25 percent of married women cheat. These numbers seem low compared to many other studies which cite cheating rates of between 40 and 60 percent. Kassia Wosick, a research affiliate at New Mexico State University and an assistant professor of sociology at El Camino College agrees that the rates cheating hover around 20 percent. She goes on to explain though, that the definition of cheating may have changed, where some people do not believe that online flirting or even kissing counts as cheating. She verified that people do think about infidelity differently than in years past. She said that people are less forgiving now than before.
So, how does this have anything to do with divorce in PA? In Pennsylvania, there are fault and no-fault divorces. Most of my cases have been no fault where either both parties agree, or that the parties have been living separately and apart for over one year. One could file a fault divorce based on the grounds of adultery [23 Pa. Cons. Stat. § 3301 (a)(2) (2022)]. A judge could grant the divorce based on this. You will, however, have to prove your claim by “clear and convincing” evidence [Crawford v. Crawford, 633 A.2d 155 (Pa. Super. Ct. 1993)]. The defendant in this case, can bring forth defenses.
Adultery could affect alimony awards too. Alimony is typically secondary to equitable distribution. It is not guaranteed either. There are many factors a judge will consider when determining alimony. Marital misconduct is one of those factors, especially if the spouse’s affair has caused financial harm to the innocent spouse. Note that a judge will not be able to consider adultery when determining equitable distribution. [23 Pa. Cons. Stat § 3502 (a) (2022)].
If an alimony amount is awarded, it ends when the spouse receiving alimony cohabitates with another or remarries. The law is not trying to punish someone for committing adultery, but rather, if the party is living with someone else, the need for alimony support is lessened.
Mediation can help couples avoid this stress. With mediation the couples have more control over their situation. If the marital misconduct is embarrassing to some and the parties want to maintain privacy, then mediation is a much better option.
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