How Wisconsin Courts deal with Adultery

Adultery is illegal in Wisconsin. It is a Class I felony punishable with a fine of up to $10,000 or even jail time. However, criminal charges of cheating are rarely pursued, in WI courtrooms. 

What are Wisconsin's 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.

Can an Affair Impact My 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. 

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.

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