Colorado Divorce Law: Adultery

December 27, 2021

Infidelity is one of the top reasons couples cite for seeking a divorce. Today, infidelity is incredibly common, as the internet makes it easier now more than ever to communicate with or find an extramarital partner. Though the cheating spouse may try to hide their indiscretion, many times their spouse finds out, anyway.

If your spouse has been having an extramarital affair and you’re contemplating a divorce, you may wonder how infidelity will affect your divorce proceedings. Understanding Colorado law and the details of your situation can help you determine how much influence infidelity will have on your divorce.

What Role Does Adultery Play in a Divorce in Colorado?

Lawmakers agree that adultery occurs when a legally married person engages in a voluntary sexual encounter or relationship with another person other than their legal spouse. Here, the adulterous spouse has committed marital misconduct, whereas the spouse who’s been cheated on is known as the “innocent spouse.”

In many states, adultery affects whether and how people divorce. States that recognize fault-based grounds for divorce often accept adultery as a ground for divorce. Some of these states even go further by punishing an adulterous spouse with, for instance, a reduction of the amount or duration of alimony.

However, Colorado is a no-fault divorce state, so Colorado courts don’t care about why a marriage failed. The courts don’t consider any evidence of marital misconduct. If one spouse can convince the court that the marriage is “irretrievably broken,” which means that the relationship is badly damaged and it can’t be saved, then the judge will grant the divorce. Colorado laws explicitly state that adultery isn’t a ground for divorce.

How Does Adultery Affect Alimony Awards in Colorado?

Alimony also referred to as spousal maintenance is the money that one spouse pays to the other both during and after divorce. Spousal maintenance aims to make sure that both spouses can live at or near the same standard of living they enjoyed while they were married.

Colorado treats alimony seriously, and the law recognizes that when two people get married, their finances are commingled. The Colorado General Assembly stipulates that the economic lives of spouses are often closely intertwined in marriage and that it’s impossible to separate the respective decisions and contributions of the spouses later.

Thus, Colorado assumes that when the combined gross annual income of divorcing spouses is less than $75,000, temporary alimony must be ordered during the divorce proceedings. But if the gross income is more than $75,000, then a judge can choose to order temporary alimony.

These laws make sure that the poorer spouse can support their needs while the divorce works its way through the legal system. Later, when a family law judge issues a permanent, final order, they will decide whether the spousal maintenance should continue. Family law courts consider the following factors when making a final alimony award:

• The finances of the obligee, including actual or potential income from marital or separate property or any other source, and the ability of the obligee to meet their needs independently.
• The finances of the obligor, including their actual or potential income from marital or separate property or any other source and the ability of the obligor to meet their reasonable needs while paying alimony.
• The standard of living during the marriage.
• The distribution of marital property, including whether additional marital property may be awarded to reduce the need for alimony.
• Both spouses’ income, employment, and employability, obtainable via reasonable diligence and additional training or education, if need be, and any necessary reduction in employment because of the needs of a minor child of the marriage or the circumstances of the parties.
• The duration of the marriage.
• Whether one spouse has historically earned higher or lower income that is reflected at the time of final orders and the consistency and duration of income from overtime or secondary employment.
• The age and health of the spouses, including consideration of significant health care needs or uninsured or unreimbursed health care costs.
• The amount of temporary maintenance and the duration it was paid to the receiving spouse.
• Notable economic or non-economic contribution to the marriage, including contribution to the educational, economic, or occupational advancement of a spouse, including and not limited to payment by one spouse for the other spouse’s separate debts, completing an education or job training,or improvement of the other spouse’s personal or real property.
• And any other factors that the family law judge deems relevant.

Perhaps you have noticed that none of these factors have anything to do with adultery. That’s because Colorado judges don’t consider adultery or any other misconduct; when deciding whether to award temporary or permanent alimony. Also, adultery isn’t considered when a judge decides the amount and duration of spousal maintenance. Judges make alimony decisions “equitably,” meaning their decisions must be reasonable.

However, there’s one exception to this rule, but it’s very narrow. If a spouse commits adultery and it has economic repercussions, only then can misconduct be considered by Colorado courts when awarding alimony or during property division. For instance, if the adulterous spouse empties the joint marital bank accounts by buying luxurious gifts for their lover, this could be held against them during the alimony award.

Can You Punish Your Ex For Adultery During a Colorado Divorce?

Of course, if your spouse is still carrying on with their extramarital affair, divorcing them may not seem like a sufficient punishment for their indiscretion. Most people want to inflate pain on their spouse for hurting them. Often, spouses dealing with an affair want to hold their spouse accountable for their infidelity during the divorce proceedings. Unfortunately, Colorado law doesn’t give any room for recourse for jilted spouses.

There’s a limitation to how infidelity affects finances in a divorce. Because of what most of us see in the movies, we mistakenly believe that one can ask for a bigger portion of the marital property because their spouse cheated.

Financial penalties related to infidelity only apply to couples who have prenuptial or postnuptial agreements on record that authorize penalties for a cheating spouse. Thus, if you don’t have something on record that creates a penalty for infidelity, courts won’t impose one.

The courts will do their best to split your marital property fairly between you and your spouse without consideration of marital misconduct. The only potential exception to this rule is if the adulterous spouse squandered marital property while having an affair. Here, courts might adjust the property division process to reflect the value of the marital property your spouse squandered on lavish gifts, luxurious trips, and expensive hotel rooms.

Marital misconduct or infidelity doesn’t affect one’s ability to be a good parent. Some spouses don’t accept a bigger portion of the marital estate because of infidelity. Instead, they want to limit their spouse’s access to their shared children. Many spouses see child custody as the best way to punish their cheating spouse.

However, courts don’t take a positive stance on attempts to alienate your former spouse from the children because of an affair. Instead, courts make custody decisions that are in the children’s best interests over the wishes of jilted spouses. This should be your focus as well, your goal should be to protect your children during a divorce.

You may be hurt by the actions of an adulterous spouse, but you could increase the overall cost of your divorce by focusing on penalizing them. The best revenge is living your best life by focusing on protecting your children and building a better future for you and your children without your adulterous ex.

Contact Brighter Day℠ Law Today for Help!

Brighter Day℠ Law is a Colorado-based family law firm with a team of experienced divorce lawyers in Colorado Springs dedicated to protecting our clients’ best interests. We’re also mothers, fathers, cohabitants, and divorcees ourselves, so we’re familiar with the range of emotions, piles of paperwork, and the many intense decisions you have to make when you seek legal advice to resolve family issues. Whether you’re contemplating a divorce, drafting a prenuptial agreement, or welcoming a new member into your family, we’ll help you take control of the situation and prepare you—financially, emotionally, and logistically—for the future.

Adultery may be morally wrong, but it has little impact on a Colorado divorce. To discuss your case, and whether you can get a fair outcome, contact us today at 719-733-9129, or chat with us online.