Do courts make awards in divorce to “punish” adultery?

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Do courts make awards in divorce to “punish” adultery?

Great question. Adultery is considered a fault-based ground for divorce and a factor that can be considered when the trial court decides matters of alimony, property division, and child custody. I will answer your question according to what Utah statutory and case law provides. Utah Code § 30-3-5(9)(c) states that “‘Fault’ includes engaging in sexual relations with an individual other than the party's spouse, if such wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship. Most recently, the Utah Supreme Court discussed this very question in the divorce case of Gardner v. Gardner (Volume 425 Pacific Reporter 3rd, page 1134, decided in 2019. In that decision the Supreme Court stated, “[C]ourts should consider fault only in an attempt to balance the equities between the parties. In other words, where one party's fault has harmed the other party, the court may attempt to re-balance the equities by adjusting the alimony award in favor of the party who was harmed by that fault.” Additionally, the Supreme Court stated, in footnote 56, “We note that some Utah courts have struggled to articulate an appropriate role of fault in alimony determinations in light of our case law suggesting that the purpose of alimony is not to punish” and it cited the case of Mark v. Mark, Volume 223 Pacific Reporter 3d, page 476, where the Utah Court of Appeals observed “[I]f a trial court uses its broad statutory discretion to consider fault in fashioning an alimony award and then, taking that fault into consideration, adjusts the alimony award upward or downward, it simply cannot be said that fault was not used to punish or reward either spouse by altering the award as a consequence of fault.” “But, the Supreme Court continued, “other Utah courts have concluded that fault may be considered without constituting punishment if it is used only to rectify the inequity caused by the fault” and cited the case of Christiansen v. Christiansen, decision number 2003 UT App 348: “Fault may correctly be considered by the trial court without penalizing the party found to be at fault” and cited a line of cases standing for the proposition that “fault may be considered as long as it is used as a basis to prevent or rectify an inequity to the not-at-fault spouse.” “So, the Supreme Court concluded, “in reviewing an alimony determination involving fault, Utah appellate courts should focus on whether a fault-based modification of an alimony award helped achieve a fair, just, and equitable result between the parties rather than on whether it was punitive in nature.” With this in mind: could a court (a court, not all courts) award more alimony, divide marital property unevenly, or restrict custody or parent-time due to one of the spouse’s adultery to punish adultery? Yes, of course, even if the court went to great pains (sincerely or not) to articulate the alimony decision as not being punitive in nature. Some judges (some, not all) allow their personal antipathy for an adulterous spouse their impartiality and justify disregarding the law in favor of doing what the judge “feels is right” instead. And yes, it can happen to you. Bottom line: If you are in adulterer, and a serial and/or un repentant adulterer at that, it should come as no surprise to you that your adultery will do you no favors when it comes to the way the court can and may treat you in a divorce action. Fair or not, that is the nature of the way many people (and judges are people) view and treat adulterers. Does this mean that if you are in adulterer you should expect to be treated unfairly by a court? I think your odds are about 50-50, in my professional opinion. Do those odds mean that you should lie about adultery, if you believe you can get away with it? No, and for two reasons: 1) it is wrong to lie; and 2) if you commit adultery, then compound the problem by lying about it and get caught, you only increase your odds of being mistreated by the court. And odds are that if you lie about adultery you will be caught.