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Attorney & Mediator
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Category: Family Law
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How to sue my wife for adultery and what is it called

Resolved Question:

she has cheated several times, we have been separated for over a year, I want to get divorced and I am afraid she would keep the custody of my son.
Submitted: 9 years ago.
Category: Family Law
Expert:  Attorney & Mediator replied 9 years ago.
Who currently has custody of your son?

Are you asking how custody can be affected because of the adultery?

Could you please clarify your question, thank you.
Customer: replied 9 years ago.
Reply to LawNinvest's Post: My son is five years old. So far nobody has the legal custody, he lives mainly with me, five days a week. My wife has exposed him to alcohol and substances, not by giving them to him, but by consuming them in front of him, he has not been exposed to those things in my house. I want to sue her for adultery and get the custody of my son, also to get divorced as soon as posible. My wife cheated with a police officer and other people several times. I need to know the name of that sue, and how to start the process. Thank you.
Expert:  Attorney & Mediator replied 9 years ago.
Thank you for your response to my questions.

1) The civil action that you are referring to is called an alienation of affection. Utah is one of few states that recognize this cause of action. The elements required for this cause of action are the following:

To succeed on an alienation of affection claim, the “injured” spouse must show three things:

  • The marriage entailed love between the spouses in some degree
  • The spousal love was alienated and destroyed
  • The third party’s malicious conduct contributed to or caused the loss of affection
This would be a civil lawsuit against the third party who interfered with your marriage.

2) As to an action against your spouse that would consist of filing for divorce or legal separation. Adultery is one ground that you can assert in your divorce. From there the issues of custody will be addressed. In Utah the court looks at a parenting arrangement which serves the best interests of the child not the parents. The court will look at the following factors:

30-3-10 Custody of children in case of separation or divorce - Custody consideration.

(1) If a husband and wife having minor children are separated, or their marriage is declared void or dissolved, the court shall make an order for the future care and custody of the minor children as it considers appropriate.

(a) In determining any form of custody, the court shall consider the best interests of the child and, among other factors the court finds relevant, the following:

(i) the past conduct and demonstrated moral standards of each of the parties;

(ii) which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent; and

(iii) those factors outlined in Section 30-3-10.2 .

(b) The court shall, in every case, consider joint custody but may award any form of custody which is determined to be in the best interest of the child.

(c) The children may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the children be heard and there is no other reasonable method to present their testimony.

(d) The court may inquire of the children and take into consideration the children's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children's custody or parent-time otherwise. The desires of a child 16 years of age or older shall be given added weight, but is not the single controlling factor.

(e) If interviews with the children are conducted by the court pursuant to Subsection (1)(d), they shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with the children is the only method to ascertain the child's desires regarding custody.

(2) In awarding custody, the court shall consider, among other factors the court finds relevant, which parent is most likely to act in the best interests of the child, including allowing the child frequent and continuing contact with the noncustodial parent as the court finds appropriate.

(3) If the court finds that one parent does not desire custody of the child, or has attempted to permanently relinquish custody to a third party, it shall take that evidence into consideration in determining whether to award custody to the other parent.

(4) (a) A court may not discriminate against a parent due to a disability, as defined in Section 57-21-2 , in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody.

(b) If a court takes a parent's disability into account in awarding custody or determining whether a substantial change has occurred for the purpose of modifying an award of custody, the parent with a disability may rebut any evidence, presumption, or inference arising therefrom by showing that:

(i) the disability does not significantly or substantially inhibit the parent's ability to provide for the physical and emotional needs of the child at issue; or

(ii) the parent with a disability has sufficient human, monetary, or other resources available to supplement the parent's ability to provide for the physical and emotional needs of the child at issue.

(c) Nothing in this section may be construed to apply to:

(i) abuse, neglect, or dependency proceedings under Title 62A, Chapter 4a, Child and Family Services, or Title 78, Chapter 3a, Juvenile Court Act of 1996; or

(ii) adoption proceedings under Title 78, Chapter 30, Adoption.

(5) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

As you can read the parent's conduct is considered in granting custody. The fact that the mother has engaged in multiple affairs and has substance abuse problems will greatly persuade the court in denying her any custody. The fact that you have had the child in your custody and you have taken care of your child's daily needs shows that you have taken care of your child's best interest, which will greatly work in your favor to getting custody.

3) Lastly, In Utah adultery is a crime, so you can press charges against your spouse and the third parties she has engaged in these affairs. Below is the code section.

76-7-103. Adultery.
(1) A married person commits adultery when he voluntarily has sexual intercourse with a person other than his spouse.
(2) Adultery is a class B misdemeanor.

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