How Marital Infidelity Can Affect Property Division in a Divorce

Marital infidelity, also known as adultery, can devastate a marriage and often lead to its dissolution. Yet, Arizona divorces usually are based not on either spouse’s fault but simply on the marriage being irretrievably broken. So does a spouse’s infidelity have any effect on the divorce case? The answer depends on the practical impact the infidelity has caused.

Arizona judges are prohibited from considering evidence of adultery when deciding on whether to award spousal maintenance, often known as alimony. Eligibility for maintenance is determined based on the income or lack of income of the spouses, with an award going to the spouse who earns less and can establish a need. But when it comes to division of marital assets, an adulterous relationship can be a factor for the judge to consider if the unfaithful spouse used marital assets to finance the affair.

Marital assets, also known as community assets, are those that the married couple acquired during their marriage. Generally, a court divides the community assets equitably, though not necessarily in kind, upon a divorce, without regard to marital misconduct. However, if one spouse spent assets for extramarital purposes, it will likely be considered waste, which means using the couple’s money for anything that did not benefit the marriage. This can result in a reduced share in the division of property. If the unfaithful spouse incurred debts in connection with the extramarital affair, the other spouse won’t be responsible for that debt.

Some couples enter prenuptial agreements that govern each spouse’s entitlement to financial support and property after a divorce. In Arizona, however, courts will not enforce clauses in prenups that penalize spouses for infidelity, such as by reducing their share of property.

Arizona law governing a type of union called a covenant marriage is different from that for traditional marriages. Dissolution of a covenant marriage can only be granted based on fault grounds, such as adultery. As such, acts of infidelity determine the very right to divorce, as well as influencing the property division.

The overall goal of property division in an Arizona divorce is to be fair and equitable to both spouses. The court will take into account various factors that bear on this outcome. A knowledgeable Arizona divorce attorney can help ensure that you obtain the property settlement that you deserve.

Clark & Schloss Family Law, P.C. represents clients from Scottsdale and the surrounding area in all aspects of divorce, including property division. Call us at 602-789-3497 or contact us online to arrange a consultation.