Adultery is not a crime in Pennsylvania, but it still matters in a divorce. An extramarital affair can be used as a fault ground to avoid the usual waiting period, and it can reduce or eliminate alimony. It rarely changes how property is divided, and it almost never changes custody. The adultery laws in Pennsylvania, in other words, live entirely in family court now, and the real risk is financial rather than criminal.
Adultery Is Not a Criminal Offense
No one in Pennsylvania faces arrest, jail, or a criminal record for a consensual sexual relationship outside of marriage. The old criminal adultery provision in Title 18 was repealed by the General Assembly, and law enforcement has no authority to investigate or charge adultery. Any consequences flow through the divorce process, not through the police.
Adultery as a Fault Ground for Divorce
Pennsylvania gives divorcing spouses two basic paths. A no-fault divorce under 23 Pa. C.S. § 3301(c) requires both spouses to consent and wait 90 days after filing. If one spouse refuses to consent, the other has to prove a full year of living separately under 23 Pa. C.S. § 3301(d).1Pennsylvania General Assembly. Pennsylvania Code 23 Section 3301 – Grounds for Divorce That one-year wait is the main reason people turn to a fault-based filing instead.
Under the fault path, a court can grant a divorce to the “innocent and injured spouse” where the other spouse has committed adultery.1Pennsylvania General Assembly. Pennsylvania Code 23 Section 3301 – Grounds for Divorce There is no statutory waiting period. The tradeoff is that you have to prove the affair, and the proceeding is adversarial from the start.
What Counts as Proof
You do not need a confession or a photograph. The traditional test asks whether the accused spouse had both the inclination to commit adultery and the opportunity to act on it. Circumstantial evidence like hotel receipts, phone records, and witness testimony about the relationship can meet that standard. Vague suspicion and secondhand rumors will not.
Do Not Record Your Spouse
This is where people damage their own case and expose themselves to criminal liability. Pennsylvania is an all-party consent state for recorded communications. Under 18 Pa. C.S. § 5703, intentionally intercepting a phone call, text message, or other electronic communication without the consent of every party is a felony of the third degree.2Pennsylvania General Assembly. Pennsylvania Consolidated Statutes 18-5703 – Interception, Etc., of Communications Secretly recording your spouse’s calls, installing spyware on their phone, or logging into their private messages can get you charged and can get the evidence excluded from the divorce.
Federal law layers on top of this. The federal wiretap statute at 18 U.S.C. § 2511 separately prohibits intentional interception of wire, oral, or electronic communications.3Office of the Law Revision Counsel. United States Code 18-2511 – Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited If you hire a private investigator, confirm their methods comply with both state and federal law. Public observation, financial records you have legal access to, and public social media posts are generally safer than anything that involves intercepting a private communication.
How Adultery Affects Alimony
Alimony is where adultery does the most financial damage. A Pennsylvania court deciding whether to award alimony and how much works through seventeen factors in 23 Pa. C.S. § 3701(b). Factor fourteen is “the marital misconduct of either of the parties during the marriage,” and adultery falls squarely inside it.4Pennsylvania General Assembly. Pennsylvania Code 23 Section 3701 – Alimony
If the spouse asking for alimony is the one who had the affair, the court can reduce the award or deny it. Judges have broad discretion, and the weight varies. A single incident may count for less than a long-running relationship that drained household finances. The other sixteen factors — income, health, age, education, length of the marriage — still apply, so adultery does not automatically eliminate alimony. It gives the other side a strong argument.
There is a critical cutoff. The statute specifies that marital misconduct occurring after the date of final separation is not considered, except where abuse is involved.4Pennsylvania General Assembly. Pennsylvania Code 23 Section 3701 – Alimony A new relationship that starts after a formal separation carries far less alimony risk than one that overlapped with the intact marriage.
Property Division Usually Does Not Change
Pennsylvania divides marital property through equitable distribution, and the statute is explicit: the court divides assets “without regard to marital misconduct.”5Pennsylvania General Assembly. Pennsylvania Code 23 Section 3502 – Equitable Division of Marital Property An affair, standing alone, does not entitle the other spouse to a larger share of the house, the retirement accounts, or the savings. The court looks at the length of the marriage, each spouse’s income and earning capacity, and their contributions to the household.
The Dissipation Exception
The affair itself does not shift the split. Spending marital money on the affair can. Factor seven of 23 Pa. C.S. § 3502(a) directs the court to weigh “the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property.”5Pennsylvania General Assembly. Pennsylvania Code 23 Section 3502 – Equitable Division of Marital Property If a spouse spent marital funds on gifts, hotel rooms, vacations, or other expenses tied to the relationship, the court can credit those wasted dollars back to the innocent spouse’s share.
Proving dissipation takes documentation. Bank statements, credit card records, and account histories showing specific expenditures linked to the affair are the standard evidence. Vague allegations rarely succeed. If you suspect dissipation, start pulling financial records early, before the other party has a chance to hide or delete them.
Custody Decisions Are About the Child, Not the Affair
Pennsylvania custody is governed by the best interest of the child standard under 23 Pa. C.S. § 5328. The statute lists detailed factors, including each parent’s ability to provide safety and stability, any history of abuse or substance issues, and the child’s own preference when developmentally appropriate.6Pennsylvania General Assembly. Pennsylvania Consolidated Statutes 23-5328 – Factors to Consider When Awarding Custody A parent’s sexual conduct outside the marriage is not on the list.
An affair matters in custody only if it directly affected the child. A parent who left a young child unsupervised to meet a partner, or who exposed the child to unsafe situations connected to the relationship, could see those facts weighed under the safety and stability factors. The analysis is about the child’s circumstances, not a judgment on the marriage. Being a bad spouse and being a bad parent are different questions in Pennsylvania family court.
You Cannot Sue the Other Person
Some states historically let a spouse sue the third party to an affair under claims called alienation of affection or criminal conversation. Pennsylvania does not. The state Supreme Court abolished the tort of criminal conversation decades ago, and alienation of affection has followed the same path. There is no way in Pennsylvania to recover money damages from the person your spouse had an affair with.