In Utah, one of the grounds for divorce is adultery or infidelity. But does it really matter in the eyes of the law? This is one of the questions I get asked most frequently. Let me say from the outset that this is a somewhat murky area of Utah law, but there are definitely some things to consider.
First, it’s important to understand what is considered adultery in Utah. Adultery is defined as voluntary sexual intercourse by a married person with someone other than their spouse. This means that any form of sexual activity outside of marriage can be considered adultery in Utah. While adultery is one of the grounds for divorce in Utah, it does not mean that the courts will automatically grant a divorce based on this reason alone. Utah is a no-fault divorce state, which means that a party seeking a divorce does not need to prove fault on the part of the other party to obtain a divorce. Typically, courts favor granting a divorce for “irreconcilable differences” over “adultery.”
It’s also worth noting that in Utah, evidence of adultery must be proven by clear and convincing evidence. This means that mere suspicion or accusation is not enough to prove adultery. The spouse alleging adultery must provide evidence such as witness testimony, text messages, pictures, or other documentation to prove their case.
However, if a spouse can prove that the other party committed adultery, it can affect the outcome of the divorce settlement. Adultery may have some impact on the division of assets and spousal support. For example, if a spouse used marital assets to finance the extramarital affair or to purchase gifts for their lover, the court may order that spouse to pay back the funds to the marital estate—this is called dissipation of marital assets. In this case, the court may award the innocent spouse a larger portion of the marital estate to make up for the dissipated assets.
Whether a spouse engaged in an extramarital affair which was ultimately a “substantial contributor to the breakdown of the marriage,” is a factor in deciding alimony. Your particular judge has some discretion regarding how or even if an affair will result in any impact on an alimony obligation.
Adultery may also impact child custody and visitation rights. Utah courts will always prioritize the best interests of the children when making custody and visitation decisions. If a spouse’s extramarital affair had a negative impact on the children, the court might limit that spouse’s parent time or decision-making authority. For example, we had a case where the children discovered one of their parents involved in an extramarital affair and were devastated by it. The children needed counseling. In this particular case, a professional (called a custody evaluator) recommended the children stay with the innocent spouse a majority of the time because the children were so devastated by the affair.
In some cases, the spouse who committed adultery may try to defend themselves by claiming that the other spouse condoned or forgave their behavior. This may be a valid defense if the innocent spouse knew about the adultery and continued to live with their spouse as if nothing had happened.
It’s important to remember that even if a spouse commits adultery, it does not necessarily mean that the other spouse will automatically receive a better settlement. The court will consider all relevant factors when making decisions regarding property division, spousal support, and child custody. If you are considering a divorce and adultery is a factor, it’s important to speak with an experienced divorce attorney who can help guide you through the process and protect your rights.
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