Since October 1, 1995, fault doesn’t enter into the equation of whether a person is entitled to alimony. Given that women still don’t have equal pay for equal work, for this article, the dependent spouse is the wife (“W”). If spouse W is dependent and the other is supporting, then W is entitled to receive alimony. However as we’ve seen in earlier installments, factors exist that can determine how much, if any, she may actually receive. Fault does have some role in alimony, and the biggest and baddest fault of all is adultery.
If W is seeking post-separation support (PSS) and the supporting spouse can prove adultery, the presiding judge has total discretion on how much weight adultery carries. The judge can deny PSS, award a percentage of his planned award without the adultery, shorten the term, or determine that the adultery should have no effect on his PSS award.
However, proving W committed adultery bars alimony. No matter if the supporting spouse is a billionaire or that he committed adultery first, W cannot get alimony in court. The parties can still provide for some alimony in a separation agreement (there may be reasons to do so), but that’s rare.
Most spouses don’t have a smoking gun – offender’s admissions, e-mails praising the latest episode, or a private detective’s videotape of a sexual encounter. Those are the golden key to be alimony free. Many spouses only have suspicions, often based on cellphone records showing numerous lengthy calls at odd hours between W and a “friend.” This activity may be an indignity and may lead to better evidence, but alone it’s not proof of adultery.
Judges are allowed to infer adultery when a spouse presents evidence of “opportunity and inclination.” Opportunity exits where W and her paramour are in a place where they could have relations (hotel room, office after hours). Inclination is shown by words or actions that indicate that a romantic relationship is desired or ongoing (holding hands, kissing, texting desires, etc.)
Adultery after separation doesn’t count as a bar even if the parties aren’t yet divorced. However, a judge can find adultery in situations where very shortly after separation ample evidence of adultery exists together with a showing W associated with the paramour before separation.
If adultery is suspected or found, it’s best to contact an experienced family law attorney. Weaver, Bennett & Bland, P.A.’s family law attorneys can assist you in this and all other issues involving alimony.
William G. Whittaker is a partner and family law attorney at Weaver, Bennett & Bland, P.A. Contact William at Weaver, Bennett & Bland, P.A. at (704) 844-1400. The information contained in this article is general in nature and not to be taken as legal advice nor to establish an attorney-client relationship between the reader and William G. Whittaker or the law firm of Weaver, Bennett & Bland, P.A.
- The Alimony Crap Shoot Part I – I’m Gonna Take Him for Everything He’s Got…Or Not
- The Alimony Crap Shoot Part II – Time Will Tell
- The Alimony Crap Shoot Part III – How Much?
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