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Wisconsin is a “no-fault” divorce state. What no-fault means is that in order to obtain a divorce you simply have to let the court know that the marriage is irretrievably broken and you no longer want to be married. Adultery is certainly a reason to get a divorce but it is not a factor the court considers when granting a divorce or when ordering alimony.

Wisconsin is a “no-fault” divorce state. What no-fault means is that in order to obtain a divorce you simply have to let the court know that the marriage is irretrievably broken and you no longer want to be married. Adultery is certainly a reason to get a divorce but it is not a factor the court considers when granting a divorce or when ordering alimony. Alimony is not a punitive tool, in other words, alimony is not granted to one spouse in order to punish the other spouse. Read on to get more information about adultery, divorce and alimony in Wisconsin.  

What is the definition of adultery?

Wisconsin law is very specific when it defines adultery in Wisconsin. Adultery is defined as any person who is married who has sexual intercourse with a person who is not the married person’s spouse OR a person who has sexual intercourse with a person who is married to another.  

Is adultery a crime in Wisconsin?

Adultery is technically still a crime in Wisconsin. Anyone who is proven to have committed adultery is guilty of a Class I felony. Adultery is illegal in Wisconsin. Note that the married person is not the only party who could be found guilty of adultery, the unmarried person can also be found guilty of adultery. This law is still “on the books” but it is from before Wisconsin became a “no-fault” divorce state. Wisconsin, like many jurisdictions, used to require that a party prove “fault” in order to get a divorce and adultery was one of the things you could divorce someone for. Now that Wisconsin is no-fault, no one uses the statute anymore. The district attorney (who would normally prosecute the crime) would most likely choose not to take any action against a person who was accused of adultery in Wisconsin.  

Can you go to jail for adultery in Wisconsin?

Although adultery is illegal in Wisconsin, it is an older law from the 1800’s and it is not typically enforced. Furthermore, it conflicts with other, more recent laws that support the State of Wisconsin declining to interfere in the private sexual lives of consenting adults. Additionally, now that Wisconsin is a no-fault divorce state, the issue of adultery is not considered as a factor when the court is granting a divorce.  

Can You Be Charged with Adultery When Legally Separated in Wisconsin?

If the state still enforced the law then, yes you could potentially be charged with adultery while legally separated in Wisconsin. A legal separation does not end your marriage, you are still married and any sexual intercourse with a person you are not married to fits the definition of adultery under Wisconsin law. Please remember that the courts do not typically elect to enforce that particular law against adultery however. The courts have not enforced the law against adultery since 1990.  

Can You Sue for Alienation of Affection Due to Adultery in Wisconsin?

Alienation of affection historically was a civil liability action brought by a spouse against a third party for basically interfering with the happiness of the marriage. It was not necessary to actually prove that there had been an extramarital affair, just that the outside party had been engaging in behavior that was inappropriate with a married spouse that impacted the marriage. Many jurisdictions have done away with any law supporting a cause of action for alienation of affection.  

Wisconsin is one of the many states that has formally abolished an action for alienation of affection.  

Does Adultery Affect Alimony in Wisconsin?

Adultery does not affect alimony in Wisconsin. Wisconsin is a no-fault divorce state so an affair does not get considered during a divorce. In Wisconsin term for alimony is “maintenance” or sometimes “spousal maintenance.” When the court decides if maintenance is going to be awarded and how much to award, any cheating by one or both spouses will not affect any financial decision by the court. The fact that one or both spouses had an extramarital affair will not affect the court’s decision as far as spousal maintenance, division of marital assets and debts or child support orders.  

As stated above, the fact that one or both spouses engaged in adultery during the marriage is not a factor in Wisconsin divorce or in the calculation and award of alimony. While no one likes to be cheated on and it can have a lifelong impact on a person, the court does not take adultery into consideration when deciding alimony. The best thing you can do for yourself in this situation is meet with an experience Wisconsin family law attorney who can advise you on your divorce and see to it that you get the best possible outcome for you and your particular set of circumstances. Please feel free to give us a call, we would be happy to help you.  

Posted 
November 10, 2021
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