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How Does an Affair Affect Spousal Support?

An affair may be considered by a court to be a "fault" in a divorce proceeding.  Kentucky is notoriously considered as a no-fault divorce state, hence why all divorces are legally termed DISSOLUTION.  KRS 403.200,. the statute that governs spousal maintenance, does not provide for fault to be considered by a trial court in establishing maintenance. (Maintenance is also commonly referred to as spousal support or alimony.)

KRS 403.200 states: Maintenance -- Court may grant order for either spouse. (1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: (a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including: (a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) The standard of living established during the marriage; (d) The duration of the marriage; (e) The age, and the physical and emotional condition of the spouse seeking maintenance; and (f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

As you can see, nowhere in the statutes does FAULT to be considered.  That said, adultery may have a limited impact on alimony decisions in Kentucky. According to a landmark case, Chapman v. Chapman, 498 S.W.2d 134 (Ky. 1973), the judge can only consider adultery when deciding how much alimony to award. The judge can't, however, prevent a guilty spouse from receiving alimony just because that spouse committed adultery. The only effect of fault (like adultery) on alimony in the Kentucky courts is on the amount awarded.  Moreover, Chapman made a finding based on the lack of some suggested language instead of what was actually included in the statutes. As a practical matter, Chapman is an older decision, and the practice of Kentucky's courts and lawyers has generally been not to raise the issue of fault at all, even in alimony cases. The majority of legal experts agree that "fault, insofar as who caused the breakup of the marriage, has virtually been eliminated in Kentucky." A more recent decision in Plat v. Platt, 728 S.W.2d 542 (1987) states, "While we accept the holding of Chapman, noting our prior criticism, here is where we draw the line limiting when fault may be considered to the disregard of KRS 403.200. We believe if considering fault in determining the amount of maintenance has any redeeming quality, it is that it may prevent a windfall to the faulty party seeking maintenance." Of course, this does not stop litigious persons and attorneys from spending thousands of dollars attempting to prove fault in the divorce proceedings on the hope that a sympathetic judge will allow this as evidence and consider it in awarding maintenance.  Unfortunately, although the statute does not provide fault as a basis for the award, it does not prohibit it either. If you are in a contested divorce or need a consultation regarding spousal support, contact Michael Bouldin at mwbouldin2@gmail.com or call 859-581-6453.

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