Can you sue your spouse for cheating in Wisconsin?
From a Practical Perspective, No.
Wisconsin used to have a law against “alienation of affection.” This allowed a party to sue anyone thought to be responsible for the breakup of their marriage–including therapists, clergy members, or mothers-in-law. Under this statute, the victim of adultery could even sue his or her spouse’s paramour.
However, that statute section has been abolished–meaning there is no longer a basis for filing a law suit for “alienation of affection.” As a practical matter, this means you cannot sue for adultery in Wisconsin.
Is it illegal to cheat on your spouse in Wisconsin?
Short answer: Yes. But are you likely to be charged with adultery if you start dating before your divorce is final? No.
In Wisconsin, adultery remains a Class I Felony under section 944.16 of the Wisconsin Statutes. This is an archaic statute that exists on the books but not in practice. If your spouse is cheating and you call the police, it is entirely unlikely the authorities will take a report or arrest your spouse. There is virtually no chance the district attorney will prosecute it.
The adultery statute is a throw-back to a time when parties had to prove “fault” to get a divorce. Very often, charges of adultery formed the basis of that “fault.” Since 1977, Wisconsin courts cannot consider who is at fault when granting a divorce—therefore adultery can no longer be the basis for granting or denying a divorce.
How does adultery affect divorce in Wisconsin?
Short answer: It doesn’t
Courts cannot consider adulterous acts when making decisions in a divorce. This also means that parties typically will not be able to elicit testimony about the adultery in court and cannot call a party’s paramour to testify about the adultery.
Does adultery affect alimony?
Short answer: No.
Alimony is called “maintenance” in Wisconsin and it is not affected by adultery. If you are the party having an affair or dating before your divorce is final, the judge cannot punish you by making you pay more to your spouse.
Likewise, if your spouse is cheating or is dating someone while the divorce is pending, you will not get more money because of it.
Does adultery impact property division, child support or custody?
Short answer: No.
Again, Wisconsin courts cannot consider adultery when deciding financial issues—except to the extent the adultery wrongfully depletes the marital estate. In most cases, the financial impact of an affair is immaterial in the divorce. Generally, the court will not make one party reimburse the other for dinners out or minor incidental costs. It is only when the cost of the relationship starts to burden the marital estate that the court will intervene or take corrective action.
Having an affair does not obligate you to pay more than half of the marital estate to your spouse in the property division. If your spouse cheats on you, you are not entitled to more than half of the marital estate.
Adultery does not impact child support at all. Regardless of how much you or your spouse spend on a new relationship, the court will still consider your entire income to be available for child support purposes.
Committing adultery in and of itself does not impact the court’s opinion on whether a party is fit to be a parent. Adultery will only factor into the court’s custody and placement decisions if the parent’s new partner negatively impacts the children. In determining whether a new partner has a negative impact, the court will consider such factors as how much time the parent spends with the partner while he or she is supposed to be with the children; whether the children have met the partner and, if so, whether the children and the partner have a good relationship; and whether the new partner interferes with the parent’s relationship with the children.
If you have questions or concerns about how a new relationship will impact your pending divorce, please call us for a free consultation!