Special Utah Alimony Issues — Adultery

Alimony is a tricky subject in Utah divorces. Usually, determining alimony is a function of two things: time and need. The longer the marriage, the more likely a Court will award alimony and the longer alimony will last. The more need the less-well-off spouse has, the larger the average alimony award.

In some cases, there is another factor that comes in to play: adultery. Adultery is a possible factor because of Utah Code, Section 30-3-5(8)(b)-(c)(1), which says:

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms thereof.
(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

(i) engaging in sexual relations with a person other than the party’s spouse.

But, just because the law says adultery is a possible consideration in awarding alimony (“the court may consider”), it doesn’t mean the Court will consider adultery.

In fact, it usually doesn’t. The reason is because alimony is a monetary award, and how does one quantify adultery? $10,000 per incident? $50,000 per affair? Quantifying adultery is like trying to figure out if a rock is heavier than a line is long. It’s an impossible task.

I’ve talked with many Utah judges about adultery and alimony, and pretty much all of them have said the same thing: they will only consider adultery as part of an alimony award if you can actually quantify the effect of adultery. But how do you do that? Well, it’s not particularly easy. Let’s run through a couple scenarios.

Imagine if you will that your spouse cheated on you, and when you found out about the affair, you had a nervous breakdown, and this caused you to lose your job. In this scenario, you could actually quantify the effect of your spouse’s adultery because you could show how much you lost in wages, how much you spent in therapy, etc.

Another scenario (this one shared by a commissioner) is your spouse cheats, contracts an STD, and passes that STD on to you. You could quantify the effects by showing doctor bills and estimates from doctors regarding how much that STD will cost over your lifetime.

Now, admittedly, these types of situations don’t arise very often. And because quantifying the effects of adultery is so hard and so rare, in reality, adultery isn’t a factor in alimony awards. This seems unfair, especially when one spouse has been completely faithful. It seems unfair because it is; but, unfortunately, the law isn’t always designed to right every wrong. For the most part, Courts believe the real remedy for adultery is divorce, not money.

So, while adultery may be a factor in alimony, it almost never is. Time is much more effectively spent determining a spouse’s every dollar of need. That is what will maximize alimony.

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