Over a year ago, I wrote the following on in a blog post explaining “irreconcilable differences” in Utah divorce:

“And why not cite some sort of fault (e.g., adultery, drunkenness) as the basis for the divorce? We have a couple reasons:

“1. Alleging fault doesn’t get you anything.

“Fault will never get you anything more in your divorce. People think that by alleging adultery in their Divorce Complaint that it will get them more money. It won’t. (Let me clarify: it could in one out of a thousand cases, but the chance is so low as to be negligible.)”

That had been my experience with Utah divorces until that point. Now, my thinking has changed a bit.

What Has Changed and Why?

What’s caused my thinking to change on alleging fault is this: some (and by some, I mean 2) new trial decisions have come down in the last year in which judges have reduced alimony because of adultery.

Neither of these decisions was based on what I call the “economic nexus theory of adultery.” What I mean is economic nexus is until this last year, judges had always told me adultery wouldn’t affect alimony unless the alimony caused some sort of direct economic harm to the faithful spouse.

(Best example of what I’m talking about is Spouse A commits adultery and acquires an STD. Spouse A gives STD to Spouse B, who then has to pay all manner of medical bills for treatment. Those medical bills, and other costs related to the adultery/STD could affect alimony.)

No, these decisions lowered alimony solely because one spouse cheated on the other, and the judge didn’t want to reward the cheating spouse for breaking up the marriage.

What I still haven’t seen is a judge increasing alimony solely because of adultery. The same logic applies to increasing alimony because of adultery as applies to decreasing it, but, again, I’ve never seen a judge ratchet up alimony solely because there has been adultery.

And why the change over the last year? I think the answer might lie in the turnover in judges. We have had massive turnover in Salt Lake City District Court judges in the last year or two. Obviously, some of these new judges are more willing to address fault in alimony cases than the now retired judges.

Lessons Learned

I still tend to believe what I wrote over a year ago. I don’t think adultery will decrease alimony in the vast majority of cases, and alleging it probably isn’t worth the increased fight most of the time.

That said, if you have a case with one of these two judges who have taken adultery in to account when calculating alimony, it certainly could be worth alleging fault and then using that as a bargaining chip in negotiations.

Utah divorce law is a dynamic thing, and it takes a lot of time and effort to keep up on the trends. This is one reason we only take divorce and child custody cases.

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