Adultery Laws in Arizona: Legal Significance and Consequences

An Overview of Adultery Laws in Arizona

Case law and statutory law in Arizona have been well-defined about adultery for many years. Adultery is sex of one spouse with a person who is not the spouse. Even though it is simple to define legally, the emotional problems that grow out of such behavior is far more complex. The problems don’t end with a divorce; they create worse situations after the divorce is final.
The legal ramifications of adultery must be examined if you are contemplating divorce and your spouse is guilty. The law doesn’t care if either spouse has cheated on the other. They will divide the marital estate without regard to what destroys the marriage.
The statutes that govern the actions of spouses are found in ARS 25-214. The law has a few interesting additions that can seem humorous, but they are accurate.
Adultery in ARS 25-214 is an element of no fault based law that can be used to blame one spouse during a divorce. In such circumstances, both spouses are guilty of some form of fault. The principal elements are:
Under the same statute , there are two separate sections, ARS 25-204 and ARS 25-312, that discuss legal separation and divorce. Under either section, adultery is grounds for the termination of a marriage.
Legal separation is like divorce in most respects. There may be a period of one year, but never more than two years, that needs to pass before a divorce can be terminated. The benefit is that property acquired by a spouse after the legal separation remains theirs alone, and it cannot be claimed by or for the other spouse.
The reason why the state of Arizona regards adultery as simply another form of harsh behavior in a marriage, is clear when we consider the outcome of its actions. Adultery may have been or may be the cause of the marriage ending, but it does not require alimony under the state laws. In fact, adultery may worsen the outcome for the straying spouse, because marital property will be divided in such a way as to possibly favor the innocent spouse. In effect, adultery is treated by Arizona law as a non-issue in divorce cases.

Impact of Adultery on Divorce Proceedings

When it comes to divorce proceedings in Arizona, the presence of adultery can certainly have some impact on the way that certain aspects of the case are resolved. However, it is important to have the right expectations about how and whether adultery will become a factor in your case and divorce outcome. One of the first things to understand about potential adultery in a divorce proceeding is that it is not considered illegal or even "wrong" in the eyes of the law. It may be against your religious beliefs, and it may be the reason you chose to seek out a divorce from your spouse, but it will not be used against you in court in a legal sense. So in this respect, having a partner who displayed signs of adultery is not going to come into play as per the outcomes of your divorce filing. It will only come into consideration if there are other consequences surrounding it, such as infidelity having a negative impact on any minor children involved in the divorce, having an impact on a spousal maintenance award, or if one spouse spent significant amounts of marital assets on the unfaithful behavior. To be fair, it is important to point out that of all the grounds for divorce, adultery is still considered an "enormous stain" on that relationship, and therefore there will likely be some legal consequences for adultery (again, only if the adultery has an impact on the case in some way). For example, adultery will not impact a person’s ability to retain custody of their children. The courts are not concerned about infidelity in a broad sense as it relates to their treatment of children, so long as it doesn’t directly affect the kids, such as if you found your spouse engaging in sexual activity within eyesight of the children. There are many areas in which infidelity is not going to be a factor—such as child support, child custody, asset division and spousal maintenance awards. However, adultery can be a factor when speaking about spousal maintenance—articulating the spousal maintenance concept far beyond the traditional alimony situation—and when it comes to the equitable distribution of assets. If a spouse can specifically demonstrate that another spouse is guilty of misconduct that directly harmed that spouse with respect to marital assets, then the conduct can potentially be used to alter the distribution of assets. The best thing you can do for yourself is to make sure you surround yourself with an experienced family law professional who can navigate through the nuances of adultery as they may apply to your case.

Criminal Ramifications of Adultery

In Arizona, adultery is not a crime unless it brings an AIDS infection to a spouse. In this case, it would be classified as "felony endangerment." The exception for HIV infecting a spouse is the only time the state gets involved in adultery.
The law specifically states: A person commits endangerment by knowingly creating a substantial risk of physical injury to another person. A person commits endangerment in the first degree if, under circumstances not amounting to negligence, the person causes a substantial risk of death of another person. In all other cases, endangerment is a class 2 misdemeanor.
Adultery was once a crime in Arizona. But in 1975, the legislature kicked out A.R.S. 13-650 which made it a crime. In the "good old days," adultery would have cost you a $500 fine and up to six months in jail.
A B.C. Johnson a lawyer from Arizona State University, was once told that the legislature threw out adultery due to the evidence it required. Given the number of people that would have had to testify or provide documentation, it made prosecution over a simple "moral crime" too impossible. It is also more likely that adultery was scuttled as a crime by the fact that many were in the same boat.
Today, an interested party can have grounds for adultery in a divorce. Evidence of adultery can be used for a highly coveted award of alimony. It can also be used in dealing with division of assets, or even the best attorney in town.

Emotional Distress Claims Stemming from Adultery

Adultery may also be linked to a claim of alienation of affection or intentional infliction of emotional distress. "Alienation of affection" occurs when a third-party intentionally interferes with an existing marriage in such a way that it causes one spouse to become estranged from the other, causing severed affections between the spouses. The most common situation to arise in which alienation of affection occurs is when a person has an extramarital affair with a person married to another. This type of claim is often referred to a "homewrecker" lawsuit. In order to prevail upon a claim of alienation of affection, the suing spouse must prove that money will be an inadequate remedy for the severed affections between the spouses.
An intentional infliction of emotional distress claim based upon adultery is much less common than an alienation of affection claim. It occurs when a third-party "engages in conduct that they know or should know will substantially certain to cause serious emotional distress" in order to drive a wedge between the complaining spouse and other spouse. If the conduct at issue is not "outrageous , " then there can be no claim.
For example, if a spouse were engaging in an affair with someone else in order to cause serious emotional distress to the spouse in order to induce divorce, then there might be grounds for a claim. However, if the first spouse is having an affair for his or her own personal reasons, then there will be no grounds for a claim of intentional infliction of emotional distress because the affair is not being done to cause serious emotional distress to the third party.
However, it is important to remember that alienation of affection and intentional infliction of emotional distress claims are disfavored by the law. The laws of Arizona do not favor the recognition of alienation of affection claims and will subject the claim to strict proof of damages. Switzerland Cheese Assn. v. Economy Lab., Inc., 82 Ariz. 406 (1957). Therefore, it is unlikely, given other avenues available for recovery, such as seeking a fault-based divorce or tortious interference with contractual relations, that one will be successful in recovering for alienation of affection or intentional infliction of emotional distress.

Evidence and Proof in Adultery Cases

Proof and Evidence in Adultery Cases in Arizona
The burden of proof for demonstrating adultery can be considerable when it comes to divorce proceedings in Arizona. In any Arizona divorce, proving adultery will usually be one factor in the decision about property distribution and child custody, but there are many variables at play. Under A.R.S. Section 25-318, the court can determine the division of marital property without regard to marital misconduct, as long as the parties’ property can be fairly divided. However, the law is a little more straightforward when it comes to spousal maintenance: adultery can be used to determine the amount and duration of an award. In some cases, the conduct of an "innocent" spouse may be called into question. All relevant facts and circumstances would be weighed to determine whether or not the conduct of both parties has contributed to the breakdown of the marriage. Many factors would come into play, including marital and financial status, duration of marriage, and contributions to the marriage as a whole.
How is Adultery Proven in Court? Burden of Proof While adultery may be cited as a reason for divorce, proving adultery in court can be a difficult task. There are many ways to prove adultery, and they include direct and circumstantial evidence. The burden of proof is on whoever makes the claim of infidelity. This means that the accusing spouse must provide enough evidence to prove his or her allegations.
Materials That Help Prove Adultery Some possible evidence that can be used to prove adultery includes: Witnesses Beyond hard evidence, there may be witnesses-even insiders (i.e. close friends, family members, co-workers, etc.)-who have knowledge of the extramarital affair. They may testify to what they have witnessed or know about the adultery. Note that these witnesses should have firsthand knowledge, such as seeing the two parties together in a private location or knowing that one of the parties has said he or she is unfaithful.
Types of Evidence Circumstantial Evidence If the aforementioned materials are unavailable, the court or judge might examine circumstantial evidence, or circumstantiality. This is evidence that hints at the truth but does not directly prove it. An example of circumstantial evidence concerned Mr. Jones, who was having an affair with his friend’s girlfriend, Miss Smith. They were frequently seen in public together and were privately text messaging each other on their phones. The husband of Miss Smith (Mr. Green) witnessed these behaviors, and he successfully sued Mr. Jones for the alienation of his wife’s affection. In another example, an Arizona couple had been living together for more than 10 years and had two children. The couple then separated and their divorce proceedings turned ugly. As part of this process, the husband accused his wife of having an affair with a friend of his. The judge determined that the husband had not proven his allegations; there was no evidence of a physical relationship between the wife and her friend. In order to successfully prove adultery involving the wife, the husband would have needed actual proof to verify his suspicions. It is not sufficient to only have feelings of suspicion and jealously—this is why direct evidence is so critical.
Role of Private Investigators When it comes to proving adultery, many people will often first turn to private investigators. These pros often are able to find the evidence that the court needs in legal matters concerning infidelity and divorce. A good private investigator will gather quality evidence that will be used in court to support the case.

Legal Guidance and Resources for Victims

Recognizing the potential emotional and legal complexities that result from an adultery case in Arizona, it is advisable for individuals affected by adultery to seek professional legal advice. An attorney with experience in Arizona’s adultery laws can provide sound legal advice and help file a successful claim against an adulterer.
Legal counsel can help parties navigate the courts, which further prevents the innocent spouse from burning up marital dollars on costly family court hearings. Her experience in family law will also help prevent hateful accusations of adultery from impacting child custody and spousal maintenance. Again, an attorney who is familiar with the lower court judges will better help you navigate difficult court proceedings.
In addition to finding legal resources online , state and local bar associations can often provide referrals that help individuals find legal assistance for adultery claims and defenses.
Aside from legal support, mediation and counseling services are available to help divorcing couples or those separated from their spouse work through the complex questions surrounding adultery. Mediation and counseling services are especially useful for those who wish to remain amicable amidst a rocky breakup. Scottsdale has many local counseling centers that provide this useful service.
A good counselor or mediator can help both parties reach a unique agreement that works for them, especially if they share children together. Mediation usually costs less than counseling and offers resources for divorce litigation alternative dispute resolution.