December 28, 2012

Can an extramarital affair post-separation affect support?

Extramarital Affair and Spousal Support

Many times, couples separate and start new relationships during the pendency of the divorce – which some might consider an extramarital affair. In a recent case decided by Pennsylvania Court, husband appealed from the trial court order that dismissed his exceptions and granted the wife spousal support. A long-recognized exception to the obligation to pay spousal support exists where the recipient spouse conducts him – or herself in a manner that would constitute grounds for a fault-based divorce. The husband argued that he was subjected to indignities based upon the wife’s post-separation extramarital affair, and that the trial court erred by excluding evidence of that affair.

If there is no evidence of conduct that would constitute grounds for a fault based divorce, then a spouse is entitled to support. Because post-separation conduct does not constitute a basis for granting a fault-based divorce, without evidence that it sheds light on the preseparation conduct of the parties, it likewise cannot be a basis for precluding the award of spousal support. The record here did not support a finding that the wife’s post-separation conduct shed light on her conduct prior to separation. S.M.C. v. W.P.C., 44 A.3d 1181 (Pa.Super. 2012).