What Happens In A Divorce When A Spouse Cheats?

When a spouse cheats and you learn about it, it can bring a swift, and emotionally devastating end to a marriage. Infidelity remains one of the most common reasons Colorado residents file for divorce. But will your spouse’s adultery affect what happens in your divorce? Find out how Colorado law treats spousal misconduct in issues like custody, spousal maintenance, and the division of property.

Is Adultery Grounds for Divorce in Colorado?

In some states, when you want a divorce you must lay out grounds for that divorce based on your spouse’s behavior. Adultery is often one of the grounds for an at-fault divorce in these states.

However, Colorado is a no-fault divorce state. That means you don’t have to prove adultery or any other behavioral grounds to have a judge end your marriage. Instead, all you need to do is demonstrate that the marriage is “irretrievably broken” and that the relationship has broken down to the point it cannot be saved.

What Happens in a Divorce When a Spouse Cheats?

Colorado law explicitly prohibits judges from considering “marital fraud or misconduct”. But there are still ways that a spouse cheating can affect different parts of your divorce.

Infidelity in Custody Decisions

While Colorado family court judges won’t specifically consider infidelity in custody decisions, there are ways that a spouse cheating can affect custody and parenting time awards. Colorado law says that in deciding the best interests of the children, courts should consider (among other factors):

  • The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests
  • Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support
  • The ability of each party to place the needs of the child ahead of his or her own needs

If your spouse cheats and then moves in with a new romantic partner after separation, spends time with that partner instead of his or her children, or exposes your children to their new partner before it is healthy to do so, those facts could affect any future custody award. You may be able to request that the court limit the involvement of third parties in parenting time, or even order no contact between your children and a new partner with a history of abuse, neglect, drug use, or sexual offenses. In these cases, it is important for you and your and your attorney to focus on how your spouse’s choices have impacted your children, rather than your own hurt feelings.

Spousal Maintenance, Adultery and Divorce

Adultery itself doesn’t impact a person’s right to receive spousal maintenance or alimony in divorce. Instead, the decision of whether to award spousal maintenance and how much is based on fairness, equity, employment history, and the parties’ financial resources and needs. However, in rare cases, when a spouse cheats he or she will use marital resources or act in a way that affects the family’s financial situation. In those cases, a judge may award spousal maintenance to account for this economic misconduct.

Cheating and Equitable Property Division

Just like with spousal maintenance, Colorado judges cannot consider adultery when dividing up the family’s marital assets. You may think that it would be “fair” for your spouse to have to pay for their infidelity. However, that is simply not a factor the courts can consider during property division.

Instead, just like in alimony cases, you and your attorney will need to frame the issue as one of wasteful dissipation of marital assets. This will involve tracing assets and documenting:

  • Gifts given to a paramour using marital funds
  • Vacations, travel expenses, and hotel costs used to cover the affair
  • Loans or credit card debt used to pay for date nights and activities with the new partner
  • Items of value taken from the marital home and given to sexual or romantic partners

If you are able to show that your spouse dissipated marital assets while pursuing their affair, the Court may compensate you for the loss of those funds or assets.

Prenuptial Agreements Can Trigger When a Spouse Cheats

The exception to the Colorado law against considering marital misconduct comes in cases with a prenuptial agreement or marital agreement. Prenuptial agreements are contracts signed by the parties ahead of the marriage. Those contracts can be enforced when the marriage ends. If your prenuptial agreement contains a clause relating to adultery, you may be able to receive the benefit of whatever you bargained for, including:

  • A lump sum payment for cheating
  • A higher percentage of marital assets based on fault
  • Spousal maintenance awards based on the length or nature of the affair

In these cases, the specific language of the marital agreement controls what you may receive. Be sure to review that language carefully with your attorney before taking the issue to court.

How the Pain When a Spouse Cheats Can Affect Your Divorce

What happens in divorce when a spouse cheats isn’t limited to the courtroom. Most divorces end in settlement, but the hurt and hard feelings caused by an affair can keep you from settling. If you have learned your spouse is cheating on you, it can sometimes be hard to set those feelings aside and consider settlement offers objectively. You may also feel compelled to hurt them back, by telling your story and getting them to admit to what they’ve done in court.

That can be expensive, and can prevent you from moving on after the affair. This is why it is wise to work with a trusted friend, therapist, or coach to process your feelings about the affair and the divorce, while trusting your attorney to make recommendations about settlement that are in your best interests.

At Aviso Law, our divorce attorneys understand how much learning about your spouse’s cheating can hurt. Attorneys Cory Tuck and Elizabeth Thomas know the limits of Colorado law, and can help you make the case for a fair property distribution and a custody order that protects your children from dangerous third parties. We are here to serve you and your family. Contact us today to schedule a consultation.

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