Fault in Pennsylvania Divorces – Do Cheating Spouses Get Less?

Question:  Does a cheating spouse get less in a divorce settlement?  

Short Answer: In general, fault does not matter in a Pennsylvania divorce.  Thus, a cheating spouse does not get less money due to the affair in a Pennsylvania divorce settlement.  However, there may be limited circumstances where an affair may affect the division of marital assets.  Our Bucks County, PA divorce lawyers discuss this scenario below. 

Does a Cheating Spouse Get Less Money in a Divorce Settlement? 

There are many reasons why marriages fail and end in divorce in Pennsylvania.  Some couples are able to end their marriages amicably and cooperate throughout the divorce process.  Some couples are not and fight each other every step of the way throughout the divorce process.  In these situations, one party is often bitter and may blame the other party for the demise of their marriage. 

For example, a spouse may be bitter and angry after discovering the other spouse was having an affair.  Oftentimes, the non-cheating spouse wants to know whether they would receive more of the marital assets in the divorce due to the affair.  The answer to that is no.   

In Pennsylvania divorces, fault does not affect the end result, i.e., it does not affect how marital assets/property are divided between the parties.  A cheating spouse does not get less of the marital assets because he or she was having extramarital affair.  However, there may be implications with respect to the cheating spouse’s right to receive spousal support and/or alimony.

The court in a Pennsylvania divorce proceeding may decline to award spousal support to a cheating spouse after the parties separate.  Similarly, with respect to alimony, which is paid after the entry of the divorce decree, the court must consider 17 factors before making an award to a spouse.  One factor the court must consider is the marital misconduct of either party during the marriage.  However, marital misconduct is only one of many factors for the court’s consideration, so an affair will not necessarily prohibit an award of alimony to a cheating spouse.

When Affairs Affect Pennsylvania Divorces – Equitable Distribution 

An affair may impact the division of marital assets, also known as equitable distribution, in a Pennsylvania divorce if the cheating spouse was or is spending marital assets on the third party.  This is called the dissipation of marital assets. (A brief discussion of equitable distribution is provided at the end of this article.)

Put simply, dissipation of marital assets is when a party spends or uses marital assets/funds for purposes that do not benefit the marriage.   Therefore, the value of the marital asset decreases. 

Consider the following example: A spouse is having an affair with a colleague from the office.  The spouse uses money from a marital joint account to buy the colleague a $35,000 car.  He also pays for the colleague’s rent of $3,000 a month for an entire year. The total the spouse spends on his colleague is $71,000. 

The non-cheating spouse discovers the affair and wants a divorce.  At the time of the divorce, the couple has $150,000 in the bank.  The cheating spouse suggests that they can divide the money equally, i.e., each would receive $75,000.  This would seem fair and reasonable.  However, if the cheating spouse did not spend the money on the third party, the couple would have had $221,000 in the bank.  In that case, each spouse would get $110,500 and not just $75,000.    

Because the spouse spent $71,000 of the couple’s money on the colleague, the non-cheating spouse may file a dissipation claim and ask to receive a credit for what the cheating spouse spent on the third party.   

Pennsylvania courts may give a dollar-for-dollar credit when dividing marital assets, i.e., the non-cheating spouse would receive $110,500 from the $150,000 that is left in the joint account at the time of the divorce, and the cheating spouse would receive $39,500, or the court may award the non-cheating spouse a greater percentage of the marital estate.  

There are other behaviors of one spouse that may cause the other spouse to file a dissipation claim in a Pennsylvania divorce.  For instance, a spouse loses a significant amount of marital funds due to gambling. 

If you are going through a PA divorce and feel that you may have a dissipation claim, contact our top rated Bucks County divorce lawyers.  We have offices in Doylestown and Newtown. 

Equitable Distribution – A Brief Overview 

Equitable distribution is the process the court applies to divide the marital estate, property and/or assets.  Equitable distribution does not necessarily mean an equal division or 50/50 split.  A party may receive more of the marital estate. 

There are 13 factors Pennsylvania courts consider when dividing the marital estate, and some factors may be considered more heavily than others.  The factors include, but are not limited to: 

• the length of the marriage; 

• the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; 
• the contribution by one party to the education, training or increased earning power of the other party; and 
• the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.