What happens after an affair when you have kids? I will answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.
If you have had an extramarital affair, it generally will not do your divorce case any favors, will not win you any sympathizers.
But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).
Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.
While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.
If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.
Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.
Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what Utah Code § 30-3-5(9)(c)) provides:
“The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony” and “”Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship: engaging in sexual relations with an individual other than the party’s spouse[.]”
What does this mean?
The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)): “Substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce.
So, when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce. And this: “Under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.”
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