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What happens after an affair when you have kids?

What happens after an affair when you have kids?

I’ll 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’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t 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 the Utah Code contains:

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

(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 an individual other than the party’s spouse[.]

(See Utah Code § 30-3-5(9)(c))

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)):

¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.

¶ 27 Accordingly, we conclude that “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.

*****

¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”

¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.

¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.

¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.

¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.

¶ 58 Therefore, 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.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-happens-after-an-affair-when-you-have-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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After a divorce, is joint residential custody better or worse for the children?

Let’s indulge an analogy to answer this question.

Is sugar good for you, or bad for you? It depends upon the circumstances. An occasional slice of cake or pie is a safe and pleasant way to enjoy sugar. ‘Nothing wrong with that. Eating so much sugar that your teeth rot and you pack on 30 unneeded pounds is irresponsible and hazardous to your health. ‘Nothing good about that. Yes, you have the right to ruin your health with too much sugar, but that does not mean you have the right to expect everyone around you to endorse or accommodate your irresponsible lifestyle.

So is joint residential custody better or worse for the children? It depends on the joint residential custody circumstances. Assuming there’s nothing emotionally or psychologically off about a child, when both parents are fit (not abusive or neglectful and physically and psychologically able to care for children), loving and supportive, there to provide personal care and attention, have residences that are safe and hygienic, and can at least tolerate the exercise of joint custody with each other, joint residential custody is unquestionably best for children (the research is copious and only getting clearer). When one of the parents is unfit, disengaged, and lives in a pig sty and/or in his/her car, joint residential custody would clearly not be in a child’s best interest.

Parental rights are fundamental, God-given, human rights. But they are not a parent’s absolute inviolable rights. If a parent is not minimally fit to exercise custody of a child, the law provides that such a parent’s parental rights can be infringed, restricted, even terminated. This is why a court can award sole custody of children, if it finds that the parents are not both fit to exercise joint custody and/or if it finds that joint custody would not subserve the child’s best interest.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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https://www.quora.com/After-a-divorce-is-joint-residential-custody-better-or-worse-for-the-children/answer/Eric-Johnson-311

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I have no job, I’m living in my parents’ house, and I’m on methadone. Can I get custody?

What do I do to gain shared custody of my now 13-year-old child? I do not have a current job (due to a medical problem), and I am living in my parents’ house. I’m on a methadone program too.

You would likely:

need to show 1) that you are, despite your circumstances (and they are pretty dire, if you didn’t know that yourself), a parent who is fit to have shared custody of your children; and 2) that shared custody of your children is in their best interest.

or

need to show 1) that you have remedied your shortcomings by a) holding employment and being self-supporting, b) having your own stable, permanent residence that is clean and safe and has room for the child, c) being either drug-free or demonstrating that your drug addiction is under control and not likely to recur; and 2) that shared custody of your children is in their best interest.

That’s a tall order, and even if you could do all that, the court may not want to modify child custody in the interest of preventing the child from the “ping-pong” effect of having the custody order change as the parents’ circumstances may change.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-do-I-do-to-gain-shared-custody-of-my-now-13-year-old-child-I-do-not-have-a-current-job-due-to-a-medical-problem-and-I-am-living-in-my-parents-house-Im-on-a-methadone-program-too/answer/Eric-Johnson-311

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What are the legal repercussions of posting an email chain between myself and my daughter’s custodial parent exposing her downright shady behavior?

What are the legal repercussions of posting an email chain between myself and my daughter’s custodial parent exposing her downright shady behavior?

Many who “answered” your question didn’t read your question carefully.

You asked what the legal repercussions would be if you were to “post” (and by “post” I presume you meant sharing on social media or something like that) an e-mail chain between you and the other parent. You did NOT ask what would happen if you posted an e-mail chain between you and your daughter.

So to answer your question as you posed it:

First, if your daughter is old enough to read what you post or be read to and understand what you post, then posting correspondence on social media between you and her mother will likely do you more harm than good, to say nothing of the harm it might do you daughter and/or the harm it may do to the relationship between you and your daughter;

It is generally not illegal to post correspondence between two people, and I have difficulty imagining how posting an email chain between you and your child’s mother could rise to the level of being a crime; however, even if the posting is not illegal, beware: posting the email chain may expose you to criminal prosecution if the correspondence itself constitutes a crime, such as correspondence that contains threats of violence or correspondence that constitutes harassment or correspondence that constitutes stalking, etc. You also probably won’t want to post correspondence that casts you in a worse light than the other parent. Review with an attorney what you consider posting before you post.

The court won’t know about you having posted correspondence between you and the other parent unless someone brings the post to the court’s attention.

The court won’t care about you having posted correspondence between you and the other parent unless someone brings the post to the court’s attention and the post is relevant to any of the issues the court has to determine in your court case. If the correspondence between you and the other parent is not material (“material” evidence is evidence that is being offered to prove an element of a claim or defense that needs to be established for one side or the other to prevail) or relevant {evidence is not “relevant” unless it is first material and then has any tendency to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence) than the court won’t pay much, if any, attention to it.

So if the email chain you have in mind shows:

  • that Mom views pornography (legal pornography), but doesn’t expose the child to it, the court probably won’t care;
  • that Mom likes to drink, but doesn’t get impaired by alcohol, the court probably won’t care;
  • that Mom holds unpopular opinions, but those opinions do no harm, the court probably won’t care;
  • that Mom argues with you over visitation or parent-time scheduling, but eventually works out a schedule with you, the court probably won’t care;

If the email chain you have in mind shows:

  • that Mom makes illegal use of drugs, the court probably will care;
  • that Mom gets drunk a lot (even if not around the child or when with the child), the court probably will care;
  • that Mom admits to being violent with the child or that Mom neglects the child’s needs, the court probably will care;
  • that Mom has lied to the court, to police, to the child welfare agencies, etc. in an effort to deceive the court about herself or about you, the court probably will care.

You get the idea?

So if you want the court to know about the email chain, so that the court can take it into account when making its orders, don’t post the chain on social media (all that does is air dirty laundry in public, and that can—and likely will—backfire on you), submit it directly to the court through proper channels.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-the-legal-repercussions-of-posting-an-email-chain-between-myself-and-my-daughters-custodial-parent-exposing-her-downright-shady-behavior/answer/Eric-Johnson-311

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