Adultery Affect a Divorce in Pennsylvania?
March 5, 2024
In Pennsylvania, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Pennsylvania include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (23 Pa. Cons. Stat. § 3301(a)(2) (2022).)
Nearly two-thirds of marital unions result in divorce. If adultery has taken place in your marriage, there are several important things to know about how it’s going to impact your divorce. In Pennsylvania law, courts recognize adultery as a fault ground for divorce. When the cheating spouse is at fault because of his or her adulterous behavior, the penalty can be significant. When a divorce involves adultery, it can affect spousal support and alimony. The spouse who has committed adultery usually isn’t eligible for alimony in Pennsylvania.
Many people think of alimony as given to the woman, but it is actually given to the earner with the lower income. In Pennsylvania, alimony isn’t automatically given to the person of lower income. The court considers a wide range of factors before deciding whether or not a person must pay alimony to their former spouse.
The court examines these factors of both spouses, not just one side. These factors are:
Misconduct during the marriage,
Length of the marriage,
Financial need,
Assets and liabilities,
Education,
All sources of income,
Earning potential,
Potential inheritance,
Health,
Age.
Alimony in Pennsylvania doesn’t last forever. When the person receiving alimony improves his or her financial situation, the court may end payments. Sometimes, the court may rule that alimony must be paid for a certain period of time. Pennsylvania courts have the right to modify or end alimony based on the changing financial circumstances of both parties. However, if one party has committed adultery and the other spouse has not, then more than the adulterous party may likely to have to pay alimony because adultery falls under misconduct.
Adultery Affects Child Custody and Visitation
If a spouse’s infidelity has negatively impacted the children, then this can affect child custody and visitation rights. Without proof that a spouse’s adultery has negatively impacted the children, the adultery usually doesn’t influence a court’s decision on child custody and visitation.
Adultery Is Sometimes Not Considered Cause for Divorce
Pennsylvania law likely won’t recognize it as the cause behind your divorce if by words or by subsequent conduct the court can find that then adultery is forgiven or waived. Also, there might be a situation in which the state won’t acknowledge adultery when the cause for divorce is when both spouses cheated. However, alimony can still be given to the spouse with a lower income if both of you committed adultery. Further, a spouse having an affair with another isn’t adultery if consented to by the other spouse it or you received a benefit from it. An example of receiving a benefit from your spouse’s affair with another is knowingly spending money that was obtained from prostitution.
You Can’t Sue Someone for Adultery in Pennsylvania
People who commit adultery in Pennsylvania can no longer be prosecuted for it. However, a spouse can still be considered at fault for a divorce because of their infidelity. The court may give the adulterer a smaller portion of the property as a result of their infidelity.
However, when filing for divorce in Pennsylvania based on a spouse's adultery, the accuser needs to prove the adultery by "clear and convincing" evidence. (Crawford v. Crawford, 633 A.2d 155 (Pa. Super. Ct. 1993).) Circumstantial evidence (such as hotel receipts, phone records, emails, texts, and photos) may be enough to prove adultery. In other words, evidence does not need evidence of the actual sexual encounters, like video recordings.
If your spouse has accused adultery in the divorce papers, there are a number of arguments you can make to try to convince the court that adultery isn't a legitimate ground for divorce even if acknowledged that the accused had sex outside of your marriage.
To do this, you'd have to prove one of the following:
The accuser spouse also committed adultery,
The accuser spouse also engaged in sexual relations after your spouse learned of the adultery,
The spouse exposed the other to "lewd company" that led to adultery, or
if you engaged in prostitution, the other spouse either approved of it or accepted money resulting from it. (23 Pa. Cons. Stat. § 3307(b) (2022).)
Special Considerations
Under Pennsylvania law, judges may not consider consider adultery (as a form of marital misconduct) that happens after the spouses have permanently separated. (23 Pa. Cons. Stat. § 3701(b) (2022).) Although post-separation adultery, by itself, won't affect alimony decisions,
Pennsylvania law prohibits an alimony award to a spouse who cohabits with "a person of the opposite sex." Despite the statute's wording, which refers to entering into cohabitation "subsequent to the divorce", Pennsylvania courts have found that this prohibition also applies when a spouse who's seeking alimony lives with a new partner before the divorce is final, as long as their relationship is marked by "financial, social, and sexual interdependence." (23 Pa. Cons. Stat. § 3706 (2022); Moran v. Moran, 839 A.2d 1091 (2003).)
Pennsylvania is an equitable distribution state. This means judges will divide the couple's property in a way they believe is fair under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean an equal or “50-50” split. Pennsylvania law states that judges may not take marital misconduct into account when dividing the couple's marital property. Therefore, adultery won't play a role in a judge's decision about what would be fair when distributing the property. (23 Pa. Cons. Stat. § 3502(a) (2022).)