It is not uncommon for one spouse to be accused of adultery during a divorce. Many of my clients in the past have been concerned with the effects of adultery on divorce outcome. Here are some important things to remember when be accused of committing an adulterous act:

• The alleged adulterous act must have happened before the divorce complaint was filed.
• Under Alabama law, Courts can diminish one’s property rights or alimony award on the basis of adultery.
• The party alleging that an adulterous act has taken place has the burden of proof.

Here, in the case of Turner v. Turner, a divorce judgment was entered on the ground of adultery committed by the mother. The judgment awarded custody and child support to the father. Accordingly, the mother appealed challenging the trial court’s judgment.

Here, the Court of Civil Appeals points out that a court may only divorce parties for adulterous conduct that precedes the filing of the divorce complaint. Morgan v. Morgan, 183 So. 3d 945, 955 (Ala. Civ. App. 2014). The mother filed the divorce complaint on November 27, 2012 and denies having committed any adulterous act before that date.

However, the mother has had two children, subsequent to the filing of the divorce, with the man allegedly involved in committing the adulterous act with the mother (hereinafter referred to as “Gamble”). The Court ruled that there is a lack of sufficient evidence of adulterous conduct before the filing of the divorce complaint despite the undisputed evidence that the mother cohabitated with Gamble after the filing of the divorce. The Court reversed this portion of the judgment.

Also, the mother argued that the trial court erroneously relied on the fact that the mother had engaged in a sexual relationship with Gamble. In order to deprive a parent of custody because of the parent’s act of adultery, there must be evidence that the adultery had a “direct bearing on the welfare of the child.” J.H.F. v. P.S.F., 8835 So. 2d 1024, 1029 (Ala. Civ. App. 2002).

The Court stated that “the trial court considered not just the fact of the relationship but also the effects of that relationship on the best interest and welfare of the child.” The trial court found the mother unfit for multiple reasons. First, the mother allowed Gamble to spend the night while the child was in the mother’s custody. Secondly, the mother allowed Gamble to act as the sole caretaker of the child in multiple situations, even though Gamble has been convicted of multiple felonies. Therefore, based on the facts and evidence presented above, the Court affirmed the trial court’s judgment rendering the mother “unfit” for custody of the child.

If you’ve been caught committing adultery or are wondering how it can affect your potential divorce, seek help from a divorce attorney. Although wrongs can’t be made into rights, everyone makes mistakes and it’s our job to provide you with the best solution possible.

If you are considering divorce and child custody is an issue,