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Does Adultery Make a Difference in a Colorado Divorce?


This summer, the Ashley Madison hack has been a hot topic of discussion. In case you haven’t heard: an individual who seemed pretty bitter toward cheaters hacked into the member database of the dating website designed for married people who wish to have an affair, threatening to release information on every Ashley Madison customer if the website wasn’t taken down. When the site remained active, the information was released, which included usernames, email addresses, and billing information for millions of members. While seeing a spouse’s name among the members could cause serious marital discord, would it make a difference in the event of a divorce to be able to prove that a spouse had successfully used Ashley Madison to cheat?

In Colorado, the only legal basis for divorce is the “no-fault” ground that the marriage is “irretrievably broken.” While technically you must prove to a judge that the marriage is beyond repair, family court judges will usually treat the fact that you’ve filed for divorce as sufficient evidence that the marriage is sufficiently broken as to warrant divorce. Evidence of infidelity would have no legal significance toward granting a divorce, and a family court judge would not have a reason to spend time hearing it.

Additionally, a family law court will not take into account evidence of wrongdoing during the marriage when devising a separation of marital property. However, if one of the spouses could show that the other spouse had spent a large sum of money that would be considered marital funds on an extramarital affair, then the non-cheating spouse might be entitled to a proportionate reimbursement of those funds to the pool of marital assets.

This could all change if the spouses were party to a prenuptial agreement with an “adultery” or “fidelity” clause. Some couples insert clauses in their prenuptial agreements that somehow penalize partners for infidelity, either by making a large payment due should it be shown that one party has cheated, or by altering the amount of alimony due if a party cheats (either increasing or decreasing the support amount, based on who does the straying). However, it can be difficult to prove that such infidelity occurred, and unless it was spelled out clearly in the agreement, it can also be difficult to define what constitutes “infidelity”; does it have to involve sex? Could kissing be considered a sufficient infidelity to trigger the clause? What about lascivious texting or pursuing a relationship through an illicit dating site? When premarital agreements that include these sorts of infidelity clauses are challenged in court, such clauses aren’t always enforced. The clauses may still serve as successful deterrents of bad conduct, however, even if they are not ultimately enforced.