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Nachum B

June 24, 2021

Adultery and Divorce in Utah: What You Should Know

Divorce can be one of the most difficult challenges a person faces in life. When adultery is involved in a divorce, the divorce can be even more painful. Indeed, when it comes to reasons Utah couples choose to get divorced, one of the most devastating is adultery. Adultery is a betrayal that cannot easily be overlooked. As divorce lawyers, one of the most common questions asked of us is whether or not a cheating spouse can affect the divorce process. You may be surprised to learn that adultery can affect your divorce in Utah, but maybe not in the way that you think.

The state of Utah treats adultery seriously, much more seriously than many other states. In Utah, adultery was even considered a class B misdemeanor criminal offense until the law was repealed in 2019. Under Utah law, adultery occurs when a married person voluntarily has sexual intercourse with a person other than their spouse. Adultery can also affect the divorce process. While adultery will not affect the property division, child custody, or visitation, it may affect a spouse’s ability to receive alimony payments. 

 

What Role Does Adultery Play in a Utah Divorce?

To understand the role adultery plays in a Utah divorce, we should consider the two different types of divorce — “no-fault” and “fault-based” divorce. Most couples in Utah choose to pursue a no-fault divorce. In a no-fault divorce, the couple does not have to prove that one person has engaged in adultery or other types of marital misconduct. Instead, the couple only needs to agree that they have irreconcilable differences. Or, the couple can simply state that they have lived apart from their spouse without cohabitating for at least three years.

A fault-based divorce requires the spouse petitioning the court for divorce to prove that the other spouse is engaged in one of the grounds for divorce recognized by Utah law. Adultery is one of the grounds for divorce in Utah. Many people do not choose to pursue a fault-based divorce because it can require more time in the courtroom and be more expensive. The party petitioning for the divorce will need to hire an investigator or work with their attorney to gather evidence proving that the other spouse engaged in adultery. 

 

Understanding Alimony in Utah Divorces

Whether you choose to pursue a no-fault or fault-based divorce in Utah, adultery can affect the outcome of your divorce. Utah judges are allowed to consider adultery when they determine how much alimony to award. If you believe that your spouse should not receive alimony from you because of adultery, you’ll need to gather evidence to prove to the court that the affair occurred. Evidence of adultery typically includes any or all of the following:

  • Phone records
  • Credit card or bank statements
  • Photographs
  • Witness testimony 
  • Any other evidence showing the spouse was unfaithful 

In many marriages, one spouse becomes dependent financially on the other spouse. Although many marriages have two working spouses, typically, one spouse will earn more money than the other spouse. Sometimes one spouse is responsible for earning the bulk of the household income, and the other spouse spends more time taking care of the children or household. Utah courts can require the higher-earning spouse to pay the lower-earning spouse alimony. When determining alimony, Utah judges consider multiple factors, including:

  •  The earning ability of the paying spouse
  •  The financial needs of the dependent spouse
  •  The length of the marriage
  •  Whether the dependent spouse has custody of minor children
  •  Whether the dependent spouse work for the paying spouse during the marriage
  •  The standard of living during the marriage
  •  The fault of either spouse during the marriage, including domestic violence or adultery

When a couple has been married for a longer time, Utah judges typically try to equalize the spouse’s standard of living. They want both spouses to have a similar standard of living after the divorce. However, courts may try to return the spouses to their original living standards before the marriage in shorter marriages. Judges can alter alimony payments when there is a substantial change in the spouse’s financial conditions after the divorce.

 

How Does Adultery Affect Alimony in Utah?

When one spouse can convince the judge that the other spouse and engaged in adultery led to the marital breakup, the judge can deny alimony to the guilty spouse. It is not uncommon for Utah judges to bar spouses who have been unfaithful from receiving alimony, even if they would have received alimony normally. 

However, if your spouse committed adultery, but you forgave him or her and caps living together for a significant time after learning about the affair, the judge will not consider adultery when determining alimony. Additionally, if both spouses have had an adulterous affair, the court will not be able to stop your spouse from receiving alimony from you because of your spouse’s infidelity.

 

Does Adultery Affect the Division of Property?

Utah family court judges cannot consider adultery when determining how to divide a couple’s property in a divorce. Likewise, adultery will not affect child custody and visitation during a divorce unless the parent’s behavior during the affair showed an inability to care for the children. In that case, the court will consider all of the factors involved when deciding on the final child custody agreement.

There is one exception to this general rule. If one spouse spent a significant amount of the couple’s shared money on the adulterous affair, the court may give the non-adulterous spouse a larger share of the marital property to compensate him or her for the lost money. Suppose you believe that you should receive a larger share of the marital property due to your spouse’s affair. In that case, we recommend gathering financial statements, receipts, text messages, and any other proof of your spouse’s affair.

Divorce can be one of the most difficult challenges a person faces in life. When adultery is involved in a

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