In Colorado, a no-fault state, when determining the final terms in a divorce the courts do not consider the specific reasons why the marriage failed. The family court system in Colorado is only concerned with dividing assets, designating spousal support and assigning child custody. All of this is based upon the couple’s current financial situation and the wellbeing of their children.
What is no-fault divorce?
No-fault divorce means a spouse doesn’t have to prove any specific reason for his or her request to dissolve the marriage. Technically, every state has some form of no fault divorce, but the process of obtaining a no-fault divorce may vary significantly from one state to another.
In a true no fault divorce state, a spouse does not have to show any specific reason for his or her request to end the marriage. Rather, the petitioning spouse petitioning may ask the Court to end the marriage simply because the marriage has suffered an “irretrievable breakdown” or the because the spouses have “irreconcilable differences.” This means that in order to become legally divorced, the party seeking a divorce won’t need to prove that the other party violated his or her vows.
Is infidelity ever relevant?
In some specific instances, a spouse’s infidelity may become relevant in a portion of the divorce proceedings.
Child custody: Oftentimes, in a contested child custody case, a question of the moral fitness of a parent can be raised. While discreet infidelity may not influence child custody arrangements, a parent who is routinely unfaithful and exposes his or her children to this behavior, or who willfully neglects his or her parenting responsibilities because of it, may have difficulty gaining custody of the children in a divorce proceeding. If there is evidence that the unfaithful spouse’s behavior would negatively impact their abilities as a parent; a judge could assign physical custody of the children to the faithful spouse.
Marital property: In an “equitable distribution” state, it is assumed that marital property will be divided equally in a divorce settlement. However, if the cheating spouse spent money on trips, gifts and other expenses to conduct an extramarital affair, the Court may find that the fair and equitable distribution of their assets would be to provide a larger share to the spouse who did not spend the marital assets in the act of being unfaithful.
Spousal support: Another issue that might be impacted by infidelity is spousal support. If it can be determined that the cheating spouse wasted marital funds or incurred debt in the course of conducting an extramarital affair, the unfaithful spouse may be penalized for this when the amount or duration of spousal support is determined by the court.
Finding fault in a no-fault state
In summary, the court may reconcile their “no-fault” position by reasoning that while the infidelity may be irrelevant to whether the couple can get divorced, it remains relevant in determining the specific elements of the divorce settlement. Of course, the impact of infidelity on these aspects of a divorce will greatly depend upon the facts of the affair. In and of itself, infidelity may not impact the marital property, child custody, or the allocation of spousal support; however, the way in which the adultery was carried out can have a significant impact on the outcome of a divorce.