Some might say that Utah is backwards, a little too old fashioned for these modern times. “After all,” some think, “as long as sexual intercourse occurs between two consenting adults, what does it matter if one of the parties was married at the time?” If the parties were separated and/or had filed for divorce beforehand, what does it matter if one spouse was unfaithful?
The reason to care about adultery is because once adultery enters in to the picture in Utah divorce, there can be legal consequences.
Alimony is awarded to the spouse that was financially dependent on the other, such as (but not only) the stay-at-home parent or the spouse who worked part-time to be home more to tend to the household and/or children. There are several factors considered when awarding alimony, and one of those can be “fault,” and fault includes “engaging in sexual relations with a person other than the party’s spouse” (Utah Code § 30-3-5(8)(c)(i)) if you can prove that it “substantially contributed to the breakup of the marriage relationship.”
Remember also that in Utah alimony rarely, if ever, awarded or withheld to punish a wayward spouse. It is possible for one to have committed adultery and still receive alimony. It is possible for one to have committed adultery and not be ordered to pay alimony.
The core function of alimony is economic, and it should not operate as a penalty against the payor nor a reward to the recipient; for that reason, regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award. Roberts v. Roberts, 335 P.3d 378 (Utah Ct.App. 2014)
The trial court was not required to take into account the wife’s adultery in calculating either the duration or the amount of the alimony award to the wife, even though statute allowed the court to consider fault in making such determination; the purpose of divorce proceedings was not to impose punishment on either party. Roberts v. Roberts, 335 P.3d 378 (Utah Ct.App. 2014)
If there has been brutality or real cruelty, punitive elements enter and wife is entitled to have that taken into consideration in fixing alimony in divorce case. Pinion v. Pinion, 67 P.2d 265 (1937).
Compare to English v. English, 565 P.2d 409 (Utah 1977) (decided prior to the current version of Utah Code §30-3-5): “The purpose of alimony is to provide support for the wife and not to inflict punitive damages on the husband. Alimony is not intended as a penalty against the husband nor a reward to the wife. (citation omitted)”
Adultery can also be considered as a moral character factor when deciding child custody2 and parent-time (Utah Code 30-3-10(1): considers “past conduct and moral standards of each party.”), although in today’s moral climate adultery appears to be less and less of a factor in child custody and parent-time determinations.
“‘Moral standards’” are a statutory consideration, Utah Code Ann. § 30-3-10 (1989), and may be relevant to a custody determination to the extent they affect the children’s best interests.” Roberts v. Roberts, 835 P.2d 193, 197 (Utah Ct. App. 1992)
See also Utah Code of Judicial Administration Rule 4-903(5):
(5) The purpose of the custody evaluation will be to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child’s best interest. This is accomplished by assessing the prospective custodians’ capacity to parent, the developmental, emotional, and physical needs of the child, and the fit between each prospective custodian and child. Unless otherwise specified in the order, evaluators must consider and respond to each of the following factors:
(5)(E)(i) moral character and emotional stability[.]