Does Adultery Affect Divorce Proceedings In The State Of Arizona?
Adultery is, perhaps, one of the most emotionally charged issues in a failing marriage. Unsurprisingly, clients will sometimes raise concerns of adultery when consulting about the possibility of a divorce. These individuals are often shocked to learn that adultery typically does not play much of a role in most Arizona family court cases. This writing will discuss some of the ways in which adultery may (or may not) matter to the issues that are commonly addressed a divorce case.
As a starting point, it is important to be aware that Arizona is a “no fault” divorce state. This means that under Arizona law, the parties to a divorce do not have to prove to the court who is to blame for the ending of their marriage in order obtain a dissolution. See ARIZ. REV. STAT. ANN. § 25-312(A)(3). Instead, to grant a divorce, an Arizona court must find that the marriage is “irretrievably broken.” See ARIZ. REV. STAT. ANN. § 25-312(A)(3). Arizona courts will not ordinarily get involved in the reasons for the breakdown of a marriage and are primarily concerned with whether there is any reasonable prospect of reconciliation. If both parties agree the marriage is irretrievably broken, the court is required to make the finding. See ARIZ. REV. STAT. ANN. § 25-312(B). If one of the parties denies that the marriage is irretrievably broken, the court will hold a hearing and decide whether to send the case to conciliation services to attempt reconciliation before proceeding with the divorce case. See ARIZ. REV. STAT. ANN. § 25-312(C). Either way, the issue of fault in the failure of the marriage does not matter to the question of whether a divorce will be granted.
With respect to the division of the marital community’s assets, adultery will also typically have no role in an Arizona court’s decision-making process. However, one instance in which it might become relevant is if the adultery resulted in abnormal expenditures. Arizona law recognizes marital waste claims. See ARIZ. REV. STAT. ANN. § 25-318(C). In a divorce, Arizona law requires courts to divide the community assets of the parties “equitably,” but also allows courts to consider “abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.” Id. In other words, if the adultery resulted in the offending spouse’s waste of marital assets, there may be a claim against the offending spouse to recover on those losses on behalf of the marital community. Again, the fact of adultery may come up, but it only matters in the context to the extent that it explains how the marital waste occurred.
When it comes to child custody matters, such as parenting time and legal decision-making, it is even rarer for adultery to be implicated as a relevant issue. In making orders for legal decision-making and parenting time, Arizona courts must “consider all factors that are relevant to the child’s physical and emotional well-being . . . .” ARIZ. REV. STAT. ANN. § 25-403(A). The statute lists many different factors that a court should consider, including “[t]he interaction and interrelationship of the child with the child’s parent or parents . . . and any other person who may significantly affect the child’s best interest.” ARIZ. REV. STAT. ANN. § 25-403(A)(2). While the fact of adultery itself may not be directly relevant to a child custody determination, if the adulterous relation is ongoing and directly impacts the well-being of a minor child, it might be something the court will consider.
As to domestic support obligations, such as child support and spousal maintenance, the facts surrounding adultery are even less likely to be relevant. Such issues are determined, not based on the fault of either party, but based on economic circumstances. Child support is determined based on such things as the relative incomes of the parties and their respective parenting time allocations. See ARIZ. REV. STAT. ANN. § 25-320(A). Spousal maintenance, meanwhile, is based on the property apportioned to a spouse, a spouse’s earning ability in the labor market, and other considerations regarding a spouse’s ability to be financially self-sufficient after the divorce. See ARIZ. REV. STAT. ANN. § 25-319(A). Ultimately, the issues raised by adultery do not commonly relate to the factors considered in ordering domestic support obligations.
Lastly, it is worthwhile to note that the State of Arizona does have a statute which criminalizes adultery. The statute provides that “[a] married person who has sexual intercourse with another than his or her spouse, and an unmarried person who has sexual intercourse with a married person not his or her spouse, commits adultery and is guilty of a class 3 misdemeanor.” ARIZ. REV. STAT. ANN. § 13-1408(A). Interestingly, the statute also states that “[n]o prosecution for adultery shall be commenced except upon complaint of the husband or wife.” While enforcement of this adultery statute may be doubtful, the statute remains currently in effect. Nevertheless, a family court is very unlikely to rely on this statute in making decisions, as the statute pertains to prosecution under criminal law rather than the civil issues raised under family law.
If you need help with a divorce, legal separation, or other family law matter in the State of Arizona, Huffman-Shayeb Law, PLLC may be able to help you with your case. Contact Huffman-Shayeb Law, PLLC to set up a consultation and to discuss your options. For any individual concerned about criminal liability in the State of Arizona, Huffman-Shayeb Law, PLLC recommends that they consult with a duly licensed attorney who can assist in criminal law matters.
