Available 24/7
It is unfortunate, but adultery is the cause of a lot of divorces in Idaho. Now, technically, adultery is a felony in Idaho. However, I do not personally know of a case where a prosecutor has charged, let alone convicted, someone due to cheating on their spouses. It is one of those laws that should probably be removed the list of Idaho laws an outdated relic.
In any event, we get asked all the time whether the adultery can be used against the spouse in the divorce case. The answer, you guessed it, is it depends.
In Idaho, you can file a fault or no-fault divorce, and adultery is one of the grounds that you can assert if you would like to pursue in your divorce petition. But, what you must keep in mind that that is an additional element that must be proven during the case for the court to even consider it against your spouse. What makes it even more difficult is that proving that your spouse cheated requires “clear and convincing evidence.”
If you do wish to pursue a fault divorce based on adultery, what can it be used for.
First, it can be used against your spouse if you are requesting spousal maintenance (alimony). Fault is one of the factors that the court can consider when it is determining how much the non-cheating spouse should be awarded and for how long. But, to get to that point, you have to overcome a separate two-part test. You have to present evidence to the court sufficient to show that you cannot meet your reasonable monthly living expenses by either your 1) employment or 2) with your property. The property includes both your separate property (if you have any) and the community property that you may be awarded during the divorce process.
At the time this post/blog is being written, the housing market is going crazy, and generally speaking, if the divorcing couple own a home, it is a good bet that there is a significant amount of equity in the home that will be split. That being said, if you own a home at the time you are getting a divorce, it is unlikely that you will be awarded spousal maintenance. But, again, that is a generality at the moment, and if there are other significant factors that come into play, such as the parties’ health, ability to make income in the future, the age of the parties, the length of the marriage, and so on, it is still possible to get awarded alimony at the end of the day.
Second, if there are minor children involved, the court must make a custody determination based on the best interests of the children. Idaho law requires the court to look at the situation as a whole, but the Court is directed to look at the “character” of all individuals involved. Now, if the other spouse has committed adultery, you could use it as an attack against that person’s character. But, the Court also has the power to assign what weight it deems appropriate to that specific fact, and it is somewhat of a luck of the draw on the specific judge as to how much (if any weight at all) that specific judge takes it into account. But, if the facts are there, and you can prove it with clear and convincing evidence, then you can present it to the court and see how it plays out.
However, you choose to proceed if the facts are there, there are other circumstances that you must take into account before going full bore on the adultery issue. One, if you choose to go down that path, it will more than likely make the case a lot more expensive which adds to the cost of the case when it comes to attorney fees. Second, it may impede your ability to settle the case at an early stage. When these things get brought up (in our experience), it doesn’t tend to make the other party accommodating to settlement. Again, that may increase the cost of the case. Three, the divorce petition may be accessed through the court filings. The issue will be out there and if you are worried about the relationship your children may have with your spouse later on down the road, it is something to consider on whether it is put in your petition for divorce.
If you are facing a divorce and your spouse cheated on you, we handle divorce cases every day. We have the experience and knowledge to help you make the choice on how to proceed. Contact us today for a consultation.