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Does Cheating Affect Alimony?

Judges have discretion when awarding spousal support. Infidelity or sexual misconduct can’t be used as evidence in court to request alimony (or spousal maintenance) in Wisconsin because it's a “no fault” state. Cheating has no impact on alimony or property and debt division.

Attorney Anne McIntyre of Sterling Lawyers explains how the landmark case Dixon vs. Dixon 107 Wis. 2d 492 , 319 N.W.2d 846 (1982) sets the precedent for how the court rules on infidelity and other misconduct during a divorce.

Can Infidelity or Other Misconduct Help Determine Alimony in Wisconsin?

Marriages come to an end for many reasons. Sometimes, it’s a slow mutual realization that the relationship isn’t working. Unfortunately, other times it’s spurred on by the conduct of one or both spouses. Divorce and family law are deeply personal, maybe more so than any other area of law. When a spouse cheats or lies, it’s hard not to feel like those actions aren’t significant to the divorce case.

Even though family law is personal – it determines the future of you and your family, after all – can hurtful actions like adultery or desertion be factored into a divorce settlement?

Wisconsin is one of the many states that is what is called a “no-fault” divorce state. This means that when you file a divorce, no reason can be given for the marriage ending other than that it has irrevocably broken down. As implied by the name “no-fault”, this means that no spouse is seen as the reason behind the divorce, legally speaking.

What’s important to note, is that no-fault isn’t just about filing for divorce. It also means that misconduct can’t be used as evidence.

The positive side of no-fault is that one spouse can’t refuse or stop the divorce if no one is at fault. It also means a persuasive spouse couldn’t try to unfairly bias the court one way or the other. The goal of no-fault is to make the process about the needs and wellbeing of both spouses and their children.

On the flip side, many spouses feel like their pain is being ignored by the courts. This is especially true when it comes to alimony (legally spousal maintenance) or child support. Both of these payments are determined in part by a judge considering a long list of relevant factors. Shouldn’t a spouse’s misconduct be a factor?

Consider the landmark case of Dixon vs. Dixon. At that time, the legal language was not quite as explicit as it is now about no-fault. In that case, the wife argued that her husband’s infidelity should be considered as one of the many “factors” used to determine the amount of alimony.

However, The Wisconsin supreme court disagreed. The divorce laws had been recently overhauled with the intention of making them fairer and “no-fault” was a part of that.

Because of this, infidelity in and of itself was determined as not adequate evidence for deciding alimony. Since then, the language of the law changed to make this even more explicit. The primary factor for determining alimony is the financial needs of the spouse receiving it and the ability of the other spouse to pay – regardless of any personal history.

While the short answer is that a spouse’s bad behavior doesn’t affect alimony – there are exceptions. Many times, marital misconduct creates ripples across all parts of a couple’s life. If those ripples are provable and significant, it might be considered as part of property division, child support, or alimony.

If the evidence shows, for instance, that a cheating spouse’s conduct had a sizable impact on the family’s finances this could be considered. So while the act alone wouldn’t be considered significant, significant impacts from it might. Also, in the case of a physically or emotionally abusive spouse, the court can put in place temporary orders or use these facts to determine child custody.

It’s understandable to want to be compensated for the emotional harm of a spouse’s actions. In the court’s eyes, a spouse’s misconduct doesn’t affect their financial needs moving forward.

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