If an affair has damaged your marriage and you and your spouse are getting divorced, you may be wondering if the infidelity would sway the court’s favor. Does the family court in Arizona judge against an unfaithful spouse? Will this affect alimony and property division?
Generally, the answer to these questions is no. Arizona is a “no-fault divorce” state, which means that the court does not look for fault on the part of either spouse. In fact, Arizona judges are prohibited from considering evidence of adultery when deciding on matters such as spousal maintenance, often known as alimony.
Adultery, though, can impact a divorce in other significant ways. Let’s take a look at these important considerations.
Infidelity Can Affect Property Division In Divorce
Two of the biggest financial issues in a divorce are spousal support (alimony) and property division. In Arizona, adultery is not a factor in determining alimony. The computation for this is mainly based on the separate incomes of the spouses, as alimony is intended to be a form of support to the spouse who earns less.
As for property division, the adulterous relationship may play a significant role. If it is found that the unfaithful spouse used marital assets to spend on the affair, it can damage their claim during property distribution.
Marital assets, also known as community assets, are those that the married couple acquired during their marriage, and which are divided equitably between the two of them upon separation. If one spouse spent these assets for extramarital purposes, the other spouse will be entitled to reimbursement. This may be in the form of a bigger share of the divided property or a smaller share of the divided debts.
Can the offending spouse claim that they never mishandled the marital assets during the affair? That is, can they claim that they only spent or handled what was their own personal money or property? Yes, this is possible, because in some cases, certain assets are classified as separate property and not community property – for example, if one spouse received an inheritance.
In numerous divorce cases, however, an adulterous relationship inevitably gets linked to the spending of marital assets. A lawyer can establish this with the help of records such as bank statements, credit card records, and even ATM withdrawals.
Infidelity Is A Factor In A Covenant Marriage Divorce
Arizona law may have a no-fault view on divorce, but a type of union called a “covenant marriage” slightly diverges from what the ‘regular’ law says. A covenant marriage is similar to any legal union, except that it puts more emphasis on marriage being a sacred institution. Typically, the couple goes through premarital counseling from a member of the clergy, aiming to strengthen their bond.
This type of marriage is recognized by Arizona law and still involves a marriage license. But because it is a ‘covenant,’ there has to be a strong and specific reason for this marriage to be terminated. In other words, a covenant marriage divorce is fault-based.
One of the accepted grounds for terminating a covenant marriage is adultery. If a spouse seeks to end their covenant marriage on this grounds, they will need to prove in court that an adulterous relationship occurred.
Adultery Is A Crime In Arizona
Perhaps the most serious consequence of adultery is a criminal conviction. Adultery is a class 3 misdemeanor in Arizona, which means it may lead to jail time and other criminal penalties. However, this law can only be enforced if the non-adulterous spouse has formally filed a complaint. If the spouse didn’t bring the case to the authorities, the unfaithful spouse cannot be arrested or prosecuted.
The Arizona Revised Statutes defines adultery as “a married person [having] sexual intercourse with another than his or her spouse,” or “an unmarried person [having] sexual intercourse with a married person not his or her spouse.” This is a complex and sensitive matter requiring the competence of a qualified attorney.
When Spouse’s Cheating Is Used As An Advantage In Divorce
Though Arizona judges generally do not look at adultery as such in divorce cases, one party may be able to use it to paint an unfavorable picture of the unfaithful spouse. This can ultimately affect the court’s decision on family matters such as child custody and visitation.
For example, one parent may claim that the other parent spent little time with the child or squandered their childcare budget due to the affair. There are also parents who argue that it is not ideal for the child’s development to witness their mom or dad having an extramarital relationship. Assertions like this indicate that the unfaithful spouse would not be suited to have custody the child.
In sum, adultery makes divorce more precarious and complicated, even though the court does not technically consider it. If your spouse has been unfaithful to you, or if you are the one facing infidelity allegations, do not hesitate to talk to an attorney from Goldman Law. We handle these cases with the utmost professionalism, helping you resolve a delicate legal issue favorably. Call Goldman Law today at (602) 698-5520 for a consultation.