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Most states have adopted no-fault divorce laws, which only requires that the parties simply allege irreconcilable differences as the reasons for the divorce without having to present proof. These laws abrogated long-standing laws where a party had to allege specific grounds for divorce such as are found under W.Va § 48-5-201 through 209:

 Abandonment
 Cruel and inhumane treatment
 Felony conviction
 Adultery
 Desertion
 Voluntary separation
 Permanent and incurable insanity
 Habitual drunkenness or drug use
 Willful neglect or abuse of a child or spouse

By abolishing the requirement of proving grounds for divorce, the parties as well as the courts were spared the drama, accusations, conflicting testimony and evidence and emotional trauma involved in convincing a court that one party badly misbehaved. No corroboration of “irreconcilable differences” by one party is needed.

West Virginia, though, is a hybrid state in which a party may either choose to simply allege irreconcilable differences without more or allege any one or more of the grounds found above, including adultery or infidelity, a common allegation and reason for many marital dissolutions. The standard of proof for any of these grounds is by “clear and convincing evidence,” a higher civil standard than the usual one of “preponderance of the evidence.” So, if a party in a West Virginia divorce proceeding does choose to use infidelity as grounds for the divorce, how does it affect child custody and alimony?

Why Allege Infidelity as Grounds for Divorce?

Child Custody

A party may feel that a specific statutory reason for the divorce will provide an advantage in a child custody dispute or if the party is requesting alimony or spousal maintenance. However, the West Virginia Supreme Court ruled in J.B. v. A.B., 161 W.Va 332, 242 S.E. 2d 248 (1978), that infidelity or sexual misconduct is not to be considered as evidence of unfitness of the parent for child custody unless the conduct was so egregious or aggravated as to adversely affect the best interests or welfare of the child. In other words, the conduct would apparently have to be such as to significantly harm the parent-child relationship. A majority of courts in other states have come to similar conclusions feeling that they would otherwise be rewarding and penalizing parents for their conduct.

A parent who has had extramarital affairs but who has a loving and close relationship with his/her children would likely not be harmed by an allegation of infidelity regarding custody issues. A scenario where the parent has engaged in multiple affairs that are known or unknown to the children and who are suffering emotionally as a result from lack of parenting time may be one where the court will consider infidelity as a factor in awarding primary custody.

Alimony

Alimony is the payment of money from a spouse to the other so that both can remain living separately at a relatively equal income level. Alimony can be awarded once the parties are living in separate residences and are no longer acting as spouses.

There are 4 levels of alimony in West Virginia:

1. Permanent–until death or re-marriage of recipient
2. Temporary–until recipient recovers financially
3. Rehabilitative–allows resources so recipient can acquire a degree or vocational skill
4. Alimony in gross–lump sum payment

Infidelity or adultery, however, may be a factor in awarding alimony. West Virginia courts decide alimony issues on a party’s ability to pay and the other party’s level of need and can take infidelity by one or both parties into consideration. A court can deny alimony if both parties were unfaithful to the other or if the one to receive it was in an adulterous affair. Otherwise, the judge can adjust the amount and the duration of alimony based on proof of adultery.

Of course this blog is for informational purposes only and not legal advice. You should contact us directly to discuss the specifics of your case. Call and ask for Chris at 304-752-7715. We look forward to speaking with you about your case.

Sincerely,

Steven S. Wolfe, Esq.