Alimony – Should Fault Be Considered?

There was a bit of a stir in the media this week when a Utah lawmaker proposed a bill that would give family court judges the authority to consider fault when deciding the issue of alimony in a divorce case. The news reports I have seen are unclear on whether this bill would modify the law to make it permissible for a judge to award alimony solely upon a finding of adultery by the payor spouse, or if it would simply allow the judge who has determined that a spouse is eligible to receive alimony to factor in the bad conduct in determining the amount and duration of the alimony award.

Fault Already a Factor Under Texas Alimony Statute

The law in Texas is already similar to the latter. Under Texas Family Code Section 8.052 a court that has determined that a spouse is eligible to receive spousal maintenance (the term the Texas Family Code uses for alimony) may consider a number of relevant factors including marital misconduct of either party, such as adultery. In other words the Texas statute already gives the judge authority to make an alimony award larger because of the adultery of the payor spouse or to make the award smaller because of the adultery of the recipient spouse.

Critics of these types of provisions argue that it encourages more contentious divorce litigation. They say these kinds of provisions force the lawyers to dig deeper and looking for fault and in particular affairs. Additionally, they argue that the primary purpose of alimony should be remedial.  That is to help a spouse get on their feet financially during the transition after the marriage has ended.

What are Your Thoughts?

What do you think? Should a spouse who has committed adultery receive less alimony? What about a spouse who cheated and is now going to pay alimony, should that person have to pay more as a result of their bad behavior? Please comment below and let me know your thoughts are it

Related Posts

Alimony Post on our Austin Divorce Blog

Post-Divorce Alimony in Texas

Texas Alimony Not So Bad After All

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Scott Morgan is Board Certified in Family Law by the Texas Board of Legal Specialization. He has practiced family law since 1994 and is the founder of the Morgan Law Firm which is dedicated exclusively to representing divorce and family law clients in the Houston and Austin areas.

4 Responses to Alimony – Should Fault Be Considered?

  • Lisa says:

    I am hoping the decision to award alimony/vs no alimony can be a no brainer in some cases..This is a scenario that I concocted from my imagination, God help anybody that actually has to go through this !
    Take the example of the husband who was employed off and on during the marriage. This couple was married 35 years, both are in their mid to late fifties.. According to the husband. his construction trade never provided security. Husband was frequently unemployed. Husband never accumulated savings or retirement funds. The wife had the secure job and was the major breadwinner (economically) in this household..While the wife worked and the husband was unemployed, the husband participated in Boy Scouts with the children as was active in many of their other school activities..The husband cooked the meals but he was not much of an equal partner in doing other household chores..The wife was okay with this arrangement during the years that their kids were younger, living at home, and in school..Wife had many frustrations with quality of the marriage but never considered divorce..
    Fast forward to kids being out of college and on their own..Something seems off key with the husband’s behavior and in the marriage in general according to the wife..Wife eventually finds out that the husband has had an LTA(long term affair) and had been looking for sex hookups daily on Craig’s List for several years…She confronted him, they go to marriage counseling….The husband was not remorseful and assigned blame to wife and the marriage for his misbehavior…He didn’t end the affair…Eventually wife decided that she was going to throw in the towel and not work on the marriage anymore..She knew that in the case of divorce, she wanted to move out of state and be with her family.. The wife knew that she was eligible for early retirement from her longtime job with one company..She decided that she was going to postpone filing for divorce until after she retired and had secured a place to live (out of town) close to her family.. She also wanted to line up new job prospects in the town that she wanted to live in..She wanted to have all of this in place before she filed and had her husband served. All of these thoughts were swirling around in her mind for weeks and months..One day wife received and had to sign for a certified letter in the mail..After opening the certified letter the wife was surprised but not so shocked…The certified letter stated that the husband had to go to his community’s police department ASAP and sign up to be on the sex offender registry..
    At this point in time the husband was unemployed, and had no intentions of finding another job, he knew that his wife was done with the marriage and wanted a divorce..House in both husband’s/wife’s name and paid for, but the appraised value of the home amounted to being nowhere near that of the wife’s pension..The wife was hesitant on how to proceed, or file, she had a wall of fear in front of her.. She was deathly afraid she wouldn’t have enough to live on at this later stage in life should the husband get awarded half of her pension and also alimony..She felt she wouldn’t have a lot of time to recover well financially because she had significant health problems that limited her from going back to work full time..
    I would hope and think that this scenario would be a no brainer when it comes to finding fault for marital misbehavior and making the decision of how to divide assets if the outcome of the case had to be decided on by the judge…I definitely do think that the cheating spouse should not receive alimony and age and health of the working (non cheating) spouse should be taken into consideration when it comes the decision of whether or not to divide pension earnings…

  • Scott Morgan says:

    Hi Lisa, I’m not sure if the facts you described in your comment were hypothetical or not, but those are definitely facts (especially the part about him being a registered sex offender) that would make a court less inclined to award alimony. Of course in more typical cases without such aggravated facts the primary considerations that the court will look at are the economics and future financial prospects for each of the parties.

  • The Real Her says:

    Absolutely a cheating spouse should have to pay more alimony! The adultery caused the marriage break-up -it should be treated as a breach of contract. Why is alimony considered “remedial” to get the spouse not at fault to get on her feet, if there should be serious payment for lost opportunity in the break up of the marriage contract.
    For example, if a wife agrees to stay at home, give up an aspiring professional career, especially with the potential of making more income than the spouse, and in doing so, brings to the table, no longer a financial contribution, but brings the opportunity for the working spouse to move up the corporate ladder through support in numerous relocations, an emotional support and time committed “assistant” that drives the momentum to rise in his position, as well as tranquility in having children cared for, and the ability to advance in a career based on security of having the responsibilities cared for of home/family without having to pay for those necessities, then the opportunity cost after 25 years of marriage must be compensated. She should be entitled to the breach in contract for the end project, including the inability to replace lost time in building a financial reward in the workplace through years of lost promotions, lost stock options, lost 401ks, etc. If her contribution was agreed to be non-financial and she met her obligations through rearing of children and support of a spouse and family unit, then if that contract is breached, she should be compensated for opportunity cost. In addition, cruel and unusual damages should be awarded since the cheating spouse has taken her ability to go into a marriage contract with the same “abilities” – the ability has now been consumed in child-bearing and one where he still has that option open to him (so the law should be amended based on gender because of this advantage.) Our nation is in the state that it is today because the family unit is being destroyed, eroding the stability of each generation ahead of us as children grow up in divided families, parents that put their own needs above the well-being of their children, step-parents and biological parents alike, that wrongly influence our children in believing that self is most important and should be pursued without regard to commitment, responsibility, and without any regard for the effects on others.

  • The Real Her says:

    Post comment:
    Adultery is rampant, divorce is rampant, and the courts have become complacent in handing down serious judgement in preventing the breach of the marriage contract. Every divorce is seen as another “cookie cutter” case: all a mere slap on the wrist for adulterers (and zero culpability for the other half of the adulteress party). That spousal maintenance/alimony is viewed as merely “remedial” only reinforces the “self” mentality in that divorce is what now what “I” want, what is good for “me” now, and “my” right to breach a life altering contract for the all to the “party.” It’s narcissism.
    -Disgusted. Did I need to vent? Thank you.

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