How Wisconsin Courts Deal with Adultery
Wisconsin Adultery Laws
Written in the 1849, state statute 944.16 defines adultery as a Class I felony, specifically related to extramarital affairs involving sexual intercourse. The law is applicable to either the spouse involved in the affair or the third-party involved with the accused spouse.
Although the law appears to offer victims some recourse, it is rarely used.
This is partially due to conflicts with other state laws which define Wisconsin as a no-fault divorce state. Additional contradictions can be found in the law itself, which notes: “Although the state does not regulate the private sexual activity of consenting adults, the state does not condone or encourage any form of sexual conduct outside the institution of marriage.”
Wisconsin judges are unlikely to allow criminal complaints to be made on cheating, generally considering it to be a moral and private issue, and therefore outside the jurisdiction of the courts. However, in 1990, Wisconsin found its way in the national spotlight when a 28-year-old woman was charged during a divorce. The charges were dropped after the accused submitted to 40 hours of community service and parental counseling.
How an Affair Can Impact Divorce
Despite the explicit adultery law on the books, Wisconsin is a “no-fault” divorce state. This means that one spouse doesn't have to “prove” why they want a divorce other than the fact that the divorce has broken down and can't be fixed.
Infidelity could still affect your divorce judgment. Many elements of the judgment such as child custody, alimony or property division are largely determined by the judge. If evidence of an affair is brought up in a way that specifically affects the finances of the marriage or the care of your children, then it will become relevant.
For instance in cases where one spouse is spending marital assets on an affair these expenditures could be classified as marital waste during the property division negotiations.
Another way adultery may negatively impact a divorce case is related to child custody and child support. If it can be proven the new relationship your spouse is now proceeding with is not in the best interests of the child, the affair will impact custody and or support. This means specifically the person the spouse cheating is with will cause harm to the children either emotionally or physically in some form.
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Frequently Asked Questions
Can you go to jail for adultery in Wisconsin?
Wisconsin does have an adultery statute, written in 1849. This statute classified adultery as a Call I felony and can theoretically be applied to the offending spouse or the third-party involved. However, Wisconsin is also a no-fault divorce state, meaning that the courts do not take into consideration the reason for the divorce, including adultery. Adultery, while a criminal offense in Wisconsin, is seldom prosecuted due the need to preserve people's privacy. Many states have adultery and other sexual acts listed as criminal acts but are seldom used to prosecute offenders and are instead left on the records as a way for states to preserve public morality. Wisconsin has not had a District Attorney prosecute for adultery since 1990.
How does adultery affect divorce in Wisconsin?
While Wisconsin does have adultery listed as a criminal offense, Wisconsin is also a “no-fault” state. No-fault means that the spouse wishing to obtain the divorce does not need to “prove” why they want a divorce or meet a standard in order to obtain the divorce. The simple act of adultery may not directly affect the outcome of a divorce but there are factors to consider. Judges have a lot of discretion in the divorce process specifically relating to finances and custody and placement. If an affair is demonstrated to have had a negative effect on the marriage in either of these aspects, the judge may take that into consideration when awarding support or custody and placement. For example: If it is demonstrated that the unfaithful party used substantial marital funds in order to engage in the affair, the judge may deem that “marital waste” and order property division or support orders to compensate for that asset loss to the offended party. Similar with Custody and placement, if a judge determines that the affair has or will have a negative effect on the children from the marriage, they may implement orders to limit the children's exposure to that environment.
Can you press charges for adultery?
Wisconsin has adultery listed as a Class I felony. In order to pursue an adultery charge, an injured party would need to present the case to the District Attorney for prosecution. Wisconsin has not prosecuted anyone for adultery since 1990, and adultery laws are only preserved in order to demonstrate a commitment to moral decency. Wisconsin's adultery laws also interfere with other state laws, namely the no-fault divorce laws which do not require a reason for filing for divorce, other than the relationship is irrevocably broken. Therefore, successfully prosecuting a party for adultery is very unlikely.
Is Wisconsin a no-fault state for divorce?
Yes, Wisconsin is a no fault state which means that neither party needs to prove infidelity, desertion or any other reason in order to obtain the divorce. One or both parties need to testify that the divorce is irrevocably broken in order to terminate the marriage. The courts do not require that the parties be in agreement about the relationship being irrevocably broken. If both parties agree and are amicably working through the divorce proceedings together, they can file a Joint Petition for Divorce, which names them as co-petitioners rather than a Petitioner and Respondent.
What should I do if I suspect my spouse is having an affair?
In the unfortunate reality that your spouse is having an affair, and a divorce seems inevitable, try to get as much tangible proof as you can. But, be careful not to do something illegal, like recording conversations that don't comply with WI's privacy laws. Only strong evidence of a spouse's infidelity and its effects on your finances and/or your family will sway a judge's decision. As always, when in doubt, it is always best to consult an experienced family attorney.