How to Avoid Paying Alimony to a Cheating Spouse

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: November 2, 2021 References

Depending on your state, adultery can completely bar your spouse from receiving alimony. In other states, however, adultery won’t prevent your spouse from getting alimony. Instead, the infidelity will be one factor among many that a judge considers. Finally, in other states, the judge won’t consider adultery at all. Before you can begin planning your strategy, you should meet with a qualified attorney to discuss your state law. Then you need to find proof of your spouse’s infidelity.

Part 1

Part 1 of 4:

Meeting with an Attorney

1
Read your state law. In many states, alimony is discretionary. This means the judge can decide whether to award alimony or not, depending on a variety of circumstances. In about half of the states, the judge will consider “marital fault,” including adultery.
- You need to find out if your state considers adultery. You should research your state law. Search online for “your state,” “alimony,” and “adultery.”
2
Consult with an attorney. If you can’t find out whether your state considers adultery when deciding alimony, you should consult with an attorney. Only a qualified attorney can give you accurate legal advice about your state law.
- You can get a referral to a divorce attorney by contacting your local or state bar association.
- Call up the attorney and schedule a consultation. Ask how much they charge for a half-hour meeting.
- You should also consider hiring the lawyer to represent you. Although you can meet for just a half-hour meeting, you might be better off hiring him or her to handle the divorce for you. Ask how much it would cost.
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3
Discuss the role adultery played in your divorce. Although some states consider adultery when determining alimony, it depends on the circumstances. You should discuss your situation with your lawyer.
- For example, in Georgia, the adultery must have been the cause of the divorce. It isn’t enough that your spouse cheated five years ago but you reconciled. Instead, the infidelity must have ended the marriage.^{[1]
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4
Find financial reasons to oppose alimony. Your state might not allow a judge to consider adultery. However, you can still try to deny your cheating spouse alimony. Generally, judges consider the following financial factors:^{[2]
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- Income disparity. If your income is much higher than your spouse’s, then a judge is more likely to award alimony. However, if your incomes are similar, you have a strong argument against alimony.
- Each spouse’s future earning potential. Your spouse may not be working now. However, he or she could have a college degree and higher earning power if they got a job. A judge will consider how much your ex “could” make, not how much they do make.
- Your standard of living during the marriage. If your spouse became accustomed to a high standard of living, then the judge might award alimony. However, if you had a normal middle-class life, then you could argue that alimony isn’t appropriate, especially when your spouse can maintain that lifestyle on their own.
- Whether your spouse stayed home to raise the children. If your spouse didn’t forfeit their career for your family, then you can argue alimony isn’t necessary.
- The contribution your spouse made to your career. A spouse who works to put another through school or helps start a business has a stronger claim to alimony. You should point out if your spouse didn’t make any kind of contribution to your career.
5
Identify other reasons to oppose alimony. In addition to finances, a judge will consider other factors when deciding whether to award alimony. You should try to cite as many as possible to argue against your spouse getting alimony:^{[4]
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- The length of the marriage. If your marriage was short, then you can argue that alimony isn’t appropriate.
- Your spouse’s age. Your spouse is more likely to get alimony the older they are. If your spouse is relatively young, you can argue alimony isn’t necessary.
- Your spouse’s emotional or physical condition. If your spouse is disabled, then he or she will have a strong argument for alimony. However, if your spouse is healthy, then you can argue alimony isn’t necessary.
- Domestic violence. In California, for example, the judge can lower or eliminate alimony if one spouse has been convicted of domestic violence.^{[5]
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6
Come up with other strategies. You might not be able to prevent alimony, even if your spouse cheated. Nevertheless, you should discuss other potential strategies with your attorney for making sure your spouse gets as few assets as possible.
- For example, your spouse might have used marital property to support a lover. In this situation, the judge can deduct the money spent on the lover from the amount of marital property your spouse will get in the divorce.^{[6]
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Consider suing your spouse for a sexually-transmitted disease. If your spouse pick up an STD during an affair, then you might be able to sue him or her for personal injury if the STD was transmitted to you.^{[7]
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Part 2

Part 2 of 4:

Obtaining Evidence of Adultery

1
Get an admission from your spouse. You need proof that your spouse has been unfaithful.^{[8]
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Research source} Although you can tell the judge your suspicions, nothing is more powerful than evidence. In particular, you should try to get your spouse to admit to being unfaithful.
- If your spouse admits to cheating, you should write down the day and time of the admission. Because your spouse might try to walk back the admission, you should look for other evidence.
- Keep communications. Your ex might slip up and admit to adultery in an email or letter. You should hold onto these communications. You can introduce them into court as evidence.
2
Talk to the alleged partner. You can also get evidence of adultery by talking to the person your spouse slept with. He or she might confirm that they slept with your spouse during your marriage. A partner is probably more likely to admit this if their relationship with your spouse has ended.
3
Obtain other evidence. You don’t have to videotape your spouse “in the act” with someone else. However, you need to prove that he or she had the motive and the opportunity to cheat on you. You can prove motive and opportunity by gathering the following:^{[9]
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- Photos of your spouse and their lover together. It would be ideal if they were acting in an intimate manner in the photographs.
- Phone records that show constant communication between them. Look for late-night calls or calls on the weekend.
- Witnesses who saw your spouse and their lover together.
- Credit card or bank records that show large purchases, hotel visits, etc.
4
Find proof that your ex is living with another person. If your spouse has moved in with his or her lover, then you might be able to eliminate alimony altogether.^{[10]
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Research source} Some states will prevent a person from getting alimony when they move in with a romantic partner.
- You can ask family or friends where your spouse is staying. You may need these people to testify on your behalf.
5
Hire a private detective. You might need to hire someone to spy on your spouse. You should think about hiring a private investigator.^{[11]
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Research source} This person can follow your spouse around and find out who they are spending their time with.
- Private detectives generally charge $40-100 per hour. They also charge for additional costs, such as mileage.^{[12]
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- You can find detectives in the phone book. Call one up and discuss the reasons for hiring them. Discuss the scope of the investigation and what kinds of evidence you want them to gather.

Part 3

Part 3 of 4:

Filing for Divorce

1
Complete the divorce paperwork. You should probably be the person to file for divorce. You should pick up the forms required to file for divorce from the court clerk at the family law court in the county where you live. Often, these forms are posted online.
- Divorce can be “fault” or “no fault.” Almost all states have “no fault” divorce, which means neither party is to blame. However, about two-thirds still allow you to allege “fault,” such as adultery.^{[13]
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  Research source} If you have the option of alleging fault when you file for divorce, then make sure to select adultery.
- Some “no fault” states, such as Florida, still consider adultery when determining alimony.^{[14]
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  Research source} For this reason, even in a “no fault” state you should try to mention adultery in the divorce petition.
- Your spouse might have beat you to the courthouse and have filed for divorce first. He or she should ask for alimony in the petition. In this situation, you will be able to “answer” the divorce petition and explain why your spouse isn’t entitled to alimony.^{[15]
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  Research source} Mention the infidelity and all other reasons.
2
Send your spouse a copy of the paperwork. You have to file your papers with the court clerk. Make several copies. You also have to give your spouse a copy of everything you file in your case.^{[16]
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Research source} This is called “making service.”
- You can generally make service of divorce papers by paying the sheriff or constable to serve them. You cannot serve them yourself.^{[17]
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- Depending on your court, you can also hire a private process server, which you can find in the phone book. They make service for a small fee.
- You might also ask someone 18 or older who isn’t a party to the case to serve the papers for you.
3
Prepare for the hearing. In a contested divorce, you will need to have a trial or hearing. You will probably have many preliminary “status hearings” and conferences as you prepare for your hearing/trial. At these, you will appear before the judge and hammer out issues that will allow you to prepare for trial.
- You may also have a chance for “discovery.” Discovery is the fact-finding portion of a divorce.^{[18]
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  Research source} In discovery, you can send subpoenas to people requesting documents, such as financial records. You can also have your spouse answer questions under oath. If you weren’t able to get solid proof of adultery before filing for divorce, then you can use discovery to gather additional, helpful information.

Part 4

Part 4 of 4:

Attending a Hearing

1
Get your witnesses lined up. You should identify your witnesses and ask them to attend the hearing. Tell them the date, time, and location. You may also send them a subpoena, which is a legal request to show up.
- You can generally get a blank subpoena form from the court clerk.^{[19]
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2
Present your evidence. You can have witnesses testify and introduce documents to convince the judge that your spouse committed adultery. In many states, you don’t actually have to prove that adultery happened. Instead, you need to prove that your spouse had the “disposition” and “opportunity” to cheat.
- To prove disposition, you can introduce evidence that your spouse showed affection publicly with their alleged lover. You can introduce photographs of them kissing, hugging, holding hands, etc. Or you can have witnesses testify that they observed this conduct.
- To prove “opportunity,” you should introduce evidence that your spouse was seen entering their lover’s apartment late at night and not leaving until the morning. Alternately, you could show that they went away together and stayed in the same hotel.
3
Cross-examine your spouse’s witnesses. Your spouse gets to try to prove that any conduct was innocent and not actually adultery. Depending on your state, your spouse may also argue that they are entitled to alimony even if adultery occurred.
- You should be able to cross-examine any witnesses your spouse has testify. See Question Witnesses when Representing Yourself for more information.
4
Wait for the ruling. Currently, only two states allow jury trials in divorce proceedings, so your case will likely be decided by a judge.^{[20]
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Research source} The judge should make a decision after hearing all of the evidence. If your case is complicated, then the judge may take the case under advisement and issue a ruling at a later time.