What's In This Article
So you found out you have a cheating spouse.
Once the initial shock, anger and pain start to fade you’re probably starting to think about the technicalities of divorce.
If your partner was financially dependent on you, you may find yourself wondering about alimony. Will you have to pay for it? Will the circumstances matter?
The answer to those questions is, unfortunately, complicated. Divorce laws vary widely by state. And even with set laws, some workarounds and loopholes can complicate things further.
It’s hard to find answers when emotions are running high. So try to set your emotions aside and take a look at the cold hard facts.
Divorce at its core is a dissolution of a contract. Contracts are governed by the law. Your first step in finding out whether or not you’ll owe alimony to a cheating spouse is to find out the law in your state.
We’re going to take a look at laws governing alimony, and help you find out exactly how they apply in your situation.
Alimony Payments In No-Fault States
Each state has different laws that govern divorce proceedings. Some states will take into consideration the reason for the divorce. Others will not acknowledge the reason at all.
States who do not acknowledge the reason for divorce are considered no-fault states. Judges in no-fault states will follow guidelines set by the state to determine alimony. If you live in a true no-fault state, then having a cheating spouse will not affect alimony.
What Does No-Fault Divorce Mean?
Well, it means exactly what it says. Regardless of what your spouse has done, the court will not recognize the divorce as anyone's fault. Generally, in no-fault divorce states, marital assets are divided equally. The behavior of the people in the marriage will not impact who gets what.
How Do No-Fault Divorces Impact Alimony?
No-fault divorce states have a formula that determines alimony payments. Alimony formulas will take into account a few factors. First, they’ll consider if you have significantly outearned your spouse.
Then, they’ll look at how long the marriage lasted. With these two bits of information, they’ll calculate alimony payments.
Take a look at alimony calculations in the original no-fault divorce state of California. California takes 40% of the higher-earning spouse's income, then subtracts 40% of the lower-earning spouse's income.
The resulting number is the monthly alimony payment. In most cases, the payment duration will last half the length of the marriage.
You can expect other no-fault divorce states to follow a similar calculation to determine alimony. Notice that there’s no mention of infidelity in that calculation. That’s because, in no-fault divorce states, cheating has no impact on alimony.
Can I Avoid Alimony In A No-Fault State?
If you’ve determined you live in a no-fault divorce state, don’t panic! For every law, there’s a loophole, and alimony laws are no exception. The most foolproof way you can avoid alimony to a cheating spouse in a no-fault state is with a prenuptial agreement.
A prenuptial agreement is a legally binding contract that supersedes the laws regarding alimony. If your spouse signed a prenuptial agreement forfeiting alimony due to infidelity, you may not have to pay anything.
If you’ve yet to tie the knot and you’re just looking at ways to protect your future, think about signing a prenuptial agreement. The stigma surrounding these agreements is starting to fade. A prenuptial agreement can save you and your spouse a lot of heartache in the future.
Another way to avoid alimony in a no-fault state is to negotiate with your soon-to-be-ex. If you and your spouse can work together to reach a no alimony agreement, then the judge should honor it.
Which States Are No-Fault States?
17 states that are considered no-fault divorce states. They are:
- District of Columbia
Alimony Payments In Fault Divorce States
Laws surrounding alimony in fault divorce states are more complicated to navigate. Some of these states will take into account adultery when calculating alimony.
States that allow fault-based divorces tend to give the court discretion to decide whether or not you owe alimony. Don’t get too excited because fault-based divorces tend to last longer and cost more than no-fault divorces.
What Is A Fault-Based Divorce?
A fault-based divorce is a divorce where the court will consider the reason for divorce. If one of the spouses in the marriage was cheating, then the court will consider this when dividing assets and calculating alimony.
In fault-based divorces, it’s common for the at-fault spouse to cover court costs and filing fees.
How Do At-Fault Divorces Impact Alimony Payments?
At-fault divorce states will have an alimony calculation formula similar to no-fault states. However, the judge will have the discretion to reduce or deny alimony based on the information you provide in court.
If you found out your spouse was unfaithful, and you live in a fault-based divorce state, you need to gather real evidence. A confession from your cheating spouse won’t cut it for the court. The more evidence you have of their infidelities, the more likely you are to avoid alimony.
Avoiding Alimony In A Fault-Based Divorce
To avoid paying alimony to your cheating spouse, you need to prove they are the sole reason for the divorce. The more evidence you provide, the better your chance of avoiding alimony.
Evidence in a court of law is concrete and irrefutable. Anything that isn’t factual will be thrown out and not considered by the judge. Common forms of evidence that are permissible in fault-based divorces are:
- Phone records
- Text messages
- Financial receipts
- Witness testimony
- Recorded conversations
If you can produce hard evidence proving your spouse cheated, then the judge may disregard alimony payments.
Which States Allow Fault-Based Divorce?
The states that allow at-fault divorces are listed below:
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
How To Avoid Paying Alimony To A Cheating Spouse?
Divorce laws are convoluted and complicated to navigate. If you’ve caught your spouse in an affair and want to avoid alimony the best thing you can do for yourself is to hire a lawyer.
A lawyer will tell you upfront if you have any chance of avoiding alimony payments to a cheating spouse. If they think you have a case, then they’ll give you precise instructions on how to move forward.
You may balk at the cost of a lawyer, but the reality is a lawyer will be your best bet at reducing or eliminating alimony payments to a cheating spouse. Try to remember that paying a good lawyer will be cheaper than paying years of alimony.
Tips For Negotiating Your Way Out Of Alimony
If you can get your spouse to agree to drop alimony before you go to court, then you won’t have to deal with the hassle of a court battle.
When you’re negotiating with your spouse about the divorce, try to keep emotions calm and collected. If at any point you feel yourself losing control, then reschedule to talk at another time. Staying calm is going to help you get what you want.
Often, cheating spouses in an ongoing affair may want to leave the marriage as quickly as possible. Use this to your advantage and offer a reasonable division of assets to allow both of you to part ways. Get the offer in writing and have your spouse sign it.
Your spouse may also want to avoid the embarrassment of their affair becoming public. You can offer to keep the details of the divorce under wraps if they agree to forfeit alimony. Again, make sure your spouse signs this agreement.
If you’re having trouble negotiating one-on-one with your cheating spouse, then consider hiring a mediator. A mediator works to help couples reach an agreement without the intervention of the courts.
In most states, a mediation agreement signed by both spouses can not change regardless of the court’s opinion.
Now that you have a rough idea about whether you’ll owe your cheating spouse alimony, you’ll need to start taking steps to file for a divorce.
The first step will be to contact a family law attorney in your area. You don’t need to commit to hiring a lawyer right away. Most lawyers will offer you a free or low-cost first consult.
Write down any questions you have and ask them to the lawyer during your consultation. You can also ask if they offer mediation services.
Divorce is hard and emotional, no matter the reasons behind it. Try to build up a support network to help you deal with all of the stress that comes with going through a divorce.
If you find yourself unable to move past thoughts of your spouse’s cheating, consider hiring a therapist to help you work through your feelings.
Lauren Cook-McKay is the Vice President of Marketing at DivorceAnswers.com. She holds a Master’s Degree in Marriage and Family Therapy (MFT) from the University of San Diego and applies her training in private practice to helping couples struggling in their marriage. She believes there is hope in all marriages and strives to provide therapy to couples that will lead them back towards a loving marriage, or an amicable divorce that brings peace and closure.