The Gray Area of Adultery in Colorado Family and Criminal Law
For most people, the moral status of adultery is self-evident. When it comes to Colorado state law, however, the discernible attitude toward marital infidelity exists somewhere in the gray.
Does adultery ever come into consideration during Colorado divorce proceedings? The short answer is yes, but only when economic interests are involved.
Colorado has a "no-fault" policy on granting divorces, which means courts will not consider either party's misconduct when deciding whether to grant a divorce, award spousal support, or divide property. The only basis needed for a divorce in Colorado is a factual finding by the judge that the marriage is "irretrievably broken" (Colorado Statutes - Article 10 - Sections: 14-10-106).
In an article published on DivorceNet.com, Amy Castillo, a J.D. graduate from the University of Minnesota School of Law, summarizes the one exception to Colorado's "no-fault" law:
"If a spouse commits marital misconduct and the misconduct has economic repercussions, then and only then can the misconduct be considered by the court when it awards alimony or divides property."
While adultery may play a minor role in Colorado no-fault divorce proceedings, in criminal law it is non-existent. Last year, Governor John Hickenlooper signed into law a bill that decriminalized adultery in the state of Colorado. Democratic sponsors of the bill claimed that state government had no right to morally adjudicate the bedroom activities of consenting adults, while its opponents argued that the legislation undermined fundamental moral standards set forth in the Ten Commandments.
During a 2011 debate on the bill, Republican Senator Kevin Lundberg was quoted as saying:
"The idea that marriage is a singularly significant institution that should be promoted and protected in law is not unique to Colorado. Indeed, to be consistent with what we find in Senate Bill 244, the bedrock of legal standards for human history should be referred to as the nine commandments."
On a national level, skepticism towards adultery-related laws seems to be steadily growing. New Hampshire's anti-adultery law may soon be repealed, as the state Senate recently voted in favor of a bill that would get rid of a 223 year old law criminalizing marital infidelity. If Governor Maggie Hassan signs the bill, then adultery will no longer be a Class B misdemeanor in New Hampshire.
Although many people view anti-adultery laws as archaic, 21 states still have laws against adultery. Most states with anti-adultery laws categorize the act as a misdemeanor; however, Oklahoma, Michigan, Idaho, Massachusetts, and Wisconsin all list adultery as a felony.
Criminal penalties for adultery are rarely, if ever, imposed. Colorado's anti-adultery law did not include any specific criminal penalty for the offense, and the $1,200 fine for adultery in New Hampshire is not enforced.
For Colorado residents, the act of adultery itself is of no consequence in court, but the financial activities associated with marital infidelity may have relevance during divorce proceedings.