Adultery and Divorce (What You Need to Know)

Adultery and divorce can profoundly impact individuals and their families, affecting their emotional, social, and financial well-being. 

The emotional turmoil, legal challenges, and financial consequences of infidelity and divorce can be overwhelming and traumatic. 

This article aims to provide a legal guide to the consequences of adultery and divorce, helping individuals navigate their challenges and find ways to move forward.

How Does Adultery Affect Divorce in State Where You Must Prove Fault? 

In at-fault divorce states, adultery can significantly impact divorce proceedings. At-fault divorce states allow a spouse to seek a divorce on the grounds of adultery, which means that one spouse cheated on the other. 

In these states, the non-cheating spouse must prove that their spouse committed adultery to obtain a divorce.

If the non-cheating spouse can prove adultery, it may affect several aspects of the divorce settlement, including:

Child Custody

In a fault divorce state, a spouse committing adultery may affect child custody arrangements.

Generally speaking, the court’s primary concern in a child custody case is the child’s best interests. If the non-cheating spouse can show that the cheating spouse’s behavior harms the child’s well-being, the court will likely award custody to the non-cheating spouse.

For example, if the cheating spouse’s behavior has caused emotional trauma to the child or interfered with the parent-child relationship, the court may view that as a factor in favor of awarding custody to the non-cheating spouse.

On the other hand, if the cheating spouse’s behavior did not directly impact the child’s welfare, the court may be less likely to consider adultery as a significant factor in determining custody.

It’s important to note that custody decisions are always made on a case-by-case basis, and the court will consider many factors when making its decision. Adultery may be just one of many factors the court will consider when deciding what custody arrangement is in the child’s best interests.

Property Division

In a fault divorce state, if a spouse commits adultery, it can affect property division in the divorce settlement. 

In a fault divorce state, a judge may award a disproportionate property settlement because of adultery. This means that the cheating spouse may receive a smaller share of the marital assets, and the non-cheating spouse may receive a larger share.

The rationale behind this is that adultery is considered marital misconduct, so the cheating spouse may be penalized for their behavior. 

The non-cheating spouse may receive a larger share of the marital assets to compensate for the loss they suffered due to the cheating spouse’s behavior.

The impact of adultery on property division will depend on the case’s specific circumstances. Property division in a divorce generally involves the equitable distribution of marital assets and debts between spouses. 


In a fault divorce state, adultery can affect the award of alimony. Infidelity can be considered marital misconduct and could result in the cheating spouse being ordered to pay more alimony to the non-cheating spouse.

If the non-cheating spouse can prove that the cheating spouse’s behavior resulted in economic harm, such as wasting marital assets, the court may award the non-cheating spouse a larger alimony payment to compensate for the loss.

How Does Adultery Affect Divorce in No-Fault Divorce State? 

In a no-fault divorce, adultery can still affect the divorce settlement, depending on the state’s laws and the case’s specific circumstances.

In a no-fault divorce, neither spouse is required to prove fault or wrongdoing to obtain a divorce. 

Property Settlements 

Typically, the division of property and the award of spousal support or alimony will be determined based on factors such as the length of the marriage, the financial needs and resources of each spouse, and the contributions each spouse made to the marriage.

However, even in no-fault divorce states, the court may consider adultery if it impacted the marital estate in some way. 

For example, if the non-cheating spouse can prove that the cheating spouse dissipated marital assets, spent money on their affair, or otherwise engaged in behavior that harmed the marital estate, the court may award a larger share of the marital assets to the non-cheating spouse.

Additionally, if the cheating spouse used marital funds to purchase gifts or otherwise benefit the person they were having an affair with, the court may consider those expenses as marital waste, and the non-cheating spouse may be entitled to a larger share of the marital assets to compensate for the loss.


Even in no-fault divorces, if the court determines that the adultery had an economic impact on the marital estate, such as one spouse spending marital funds on an affair, the court may consider that when deciding whether to award alimony and how much to award.

Child Custody 

In general, child custody determinations are made based on the child’s best interests. 

However, if the court determines that the adultery harmed the child, such as exposing the child to inappropriate behavior or creating instability in the household, it may consider that when making custody determinations. 

The mere fact of adultery alone may not be enough to affect custody decisions.


Q: Is It Adultery if You Have Sex With Someone Other Than Your Spouse While Separated?

If you have a sexual relationship with someone other than your spouse while you are still married, it is legally considered adultery, even if you are separated and don’t live together anymore. 

Q: I Committed Adultery. Can I use that as Grounds to File for a Divorce? 

In general, if you live in a state that requires fault to get a divorce, you cannot cite your own adultery as a basis for getting divorced. 

However, in a no-fault state, the parties do not have to prove that one of the spouses is at fault for the marriage breakdown. Instead, the couple simply states that their marriage is irretrievably broken and that there is no chance of reconciliation. 

If you live in a no-fault state, you can file for divorce even if you were the person who committed adultery. 

Q: Is Adultery Illegal? 

In the United States, adultery is a crime in some states but not others. Specifically, adultery is a crime in the following states:

  • Alabama
  •  Arizona
  •  Florida
  •  Idaho
  •  Illinois
  •  Kansas
  •  Louisiana
  •  Michigan
  •  Minnesota
  •  Mississippi
  •  New York
  •  Oklahoma
  •  Rhode Island
  •  South Carolina
  •  Virginia
  •  Wisconsin

For more specifics on the legality of adultery in these states, you can read, Is Adultery Illegal? A State-by-State Guide.

It is worth noting that even in states where adultery is a crime, it is rarely prosecuted. The law against adultery is often thought to be outdated and is no longer enforced in most jurisdictions.

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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