An affair can often lead to a divorce, which then leads to the question from clients: if my spouse had an affair, can I use that against him or her in our divorce?  The answer to the question is complicated and will depend greatly on the facts of the case.  The goal of this article is to explain the various situations where an affair can play a role in a divorce.

23 Pa.C.S. § 3301(a)(2) provides that a fault divorce can be obtained when the offending spouse has “committed adultery.”  That is only half of the story, however, because the law provides for defenses to fault grounds.  Generally speaking, the defenses include provocation, condonation (“forgiveness”), and insanity.  There are also defenses specific to adultery, laid out in 23 Pa.C.S. 3307(b), which include: (1) other spouse guilty of the same conduct; (2) other spouse admitted the offending spouse into a “conjugal society;” (3) offending spouse embraced the defendant after learning of the affair; (4) allowed the offending spouse to prostitute himself or herself; or (5) exposed the offending spouse to “lewd company” which led the offending spouse to have the affair.

In terms of you versus your spouse, of the those defenses, the two most common defenses raised are that either you, yourself, also had an affair and/or you knew of the affair and forgave them, either verbally or through your conduct.  That last part is important because, legally speaking, spouses often bestow forgiveness without realizing it.  While it can be debated whether the caselaw needs to be updated, under the current state of the law of Pennsylvania, if the husband and wife have sexual relations after the affair is revealed, forgiveness has likely been bestowed, which nullifies the affair in legal terms.

If the offending spouse cannot raise a defense, then the affair is most relevant when it comes to the grounds for divorce, claims for alimony, and claims for spousal support.  You may use the affair against your spouse in these contexts.  Otherwise, the affair is not relevant.  This is surprising to clients who expect to gain an advantage in the distribution of the marital estate, but the affair is not relevant to property division.  23 Pa.C.S. § 3502 provides the factors the court is to consider when equitably dividing the marital estate.  Marital misconduct is not one of the factors.  In fact, the legislature explicitly instructed that property is to be divided “without regard to marital misconduct.”

If you or a loved one have any questions regarding the interplay between marital misconduct and a divorce, please contact me directly at mhovey@gmail.com.  Thank you!

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