Does Pennsylvania Have a Spousal Infidelity Law?

By Melanie Jo Triebel

wife talking to her husband who is packing his suitcase

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Facing a divorce is often one of the most difficult times in a person's life, particularly if the divorce involves marital infidelity. In addition to the emotional challenges, divorcing spouses might worry about the legal implications of infidelity: whether it is a crime, whether it will affect the financial components of the divorce, and whether it will affect custody of the children. Adultery is no longer a crime in Pennsylvania, and the state also abolished civil lawsuits for "alienation of affection." Marital infidelity, however, is still a civil matter for Pennsylvania divorce courts and a factor to consider in the divorce proceeding.

Adultery as a Ground for Divorce

Adultery is a ground for a fault divorce in Pennsylvania, along with other legal grounds such as cruel or barbarous treatment, bigamy, desertion, conviction of a crime and incarceration for more than two years. Pennsylvania also provides for a no-fault divorce, either through mutual agreement or by proof of the irretrievable breakdown of the marriage. While Pennsylvania doesn't require a fault ground such as adultery for divorce, using adultery as the ground for divorce might affect the final terms of the divorce decree.

Adultery and the Distribution of Property

When the court divides the marital property, it does not consider marital misconduct, including adultery. Marital property in Pennsylvania includes any property acquired during the marriage -- even if the property is titled in only one spouse's name. Marital property in the state also includes the amount by which the value of any property owned by one spouse prior to the marriage increased during the marriage. Although the original property remains separate, the appreciation in its value is part of the marital estate. Pennsylvania divorce courts aim to divide property fairly, but not necessarily equally, between spouses. When the court divides property, it considers such factors as the length of the marriage, any prior marriages, the ages, health, lifestyle and income potential of each spouse, each spouse's separate estate and debts, whether one spouse assisted in the education or training of the other and contributions to the marital property including the contributions of a homemaker.

Adultery's Effects on Child Custody

Adultery does not affect child support awards in Pennsylvania, but might affect child custody arrangements. It is important to note that adultery does not bar a parent from gaining full or partial custody of minor children. The court considers each spouse’s character, proposed living arrangements, parenting abilities, and abilities to provide for the children’s physical, intellectual, emotional and spiritual well-beings. As is always the case, however, in determining custody arrangements, the court places primary importance on the safety and best interests of the children. If marital infidelity affected or could affect the health, safety or well-beings of the minor children, the court might consider that infidelity in assigning custody.

Adultery and Alimony

It is a common misconception that a spouse who committed adultery is not entitled to spousal support, or alimony, payments. Marital misconduct, including infidelity, is one factor the court considers when awarding spousal support. But other factors contribute to the court's decision to order support, including but not limited to each spouse's earning capacity, age, and health, sources of income and potential inheritances, the length of the marriage, whether either spouse assisted in the education or training of the other, the custody of the children and how it will affect earning potential, each spouse's contributions and financial condition, as well as each spouse's needs and ability to meet those needs through an appropriate job. Each factor will be weighed, and adultery will be considered.