How Does Adultery Affect a Divorce Proceeding?

Adultery in all forms has always been socially unacceptable and is generally considered disastrous for a marriage. As cheating often leads to the breakup of the nuclear family, infidelity is discouraged as a matter of public policy. Despite social pressure, approximately 20-percent of all marriages end due to adultery. Whether cheating will affect the parties in an Arizona divorce proceeding depends on the type of marriage.

Arizona is a “no fault” divorce state. Couples who have a regular marriage may divorce for any reason. The only legal ground for ending a conventional marriage in Arizona is “irretrievable breakdown.” Judges cannot dissolve a regular marriage based on adultery or any other form of marital misconduct, nor refer to any acts of misconduct in a divorce decree. 

However, the financial aspects of adultery can affect post-marital property distribution in Arizona. Although a state statute provides that community property, jointly held property and other property held in common be distributed equitably without regard to marital fault, there are exceptions. For one, a judge may consider a spouse’s waste or dissipation of distributable property in determining his or her share. Money spent in carrying on an adulterous affair would be considered waste if the other spouse can show that community, joint or commonly held property was used for that purpose. To compensate for that waste, the court may award the other spouse additional assets or spousal maintenance. The wasting spouse may also have to pay more in child support.

Adultery also may be relevant if any children of the marriage are affected by a spouse’s infidelity. A judge may consider adultery in determining child custody and visitation.

The only exception to no fault divorce in Arizona is the “covenant marriage.” Under Arizona law, prior to the wedding, a couple may elect a special form of marriage allowed under the state’s covenant marriage statute. A covenant marriage can be dissolved only if the judge finds marital fault by one or both parties. Adultery is among the types of misconduct that substantiates divorce. As with regular marriages, marital fault is not considered for property distribution or spousal maintenance in covenant marriage divorce proceedings.

Located in Scottsdale, Arizona, Clark & Schloss Family Law, P.C., has one of the most active divorce and family law practices in the region. If you are in need of representation in a divorce or other family related matter, contact us online or call us at 602-789-3497 for an initial consultation.