When people discover that his or her husband or wife is committing crimes or has been convicted of crimes, they often panic. One of the first questions we hear in such cases is, “How do I keep his/her criminal mess from ruining my life and my case?” The good news is that Utah law does not punish the non-offending spouse for the wrongdoing of the other. But a spouse’s criminal behavior can, depending upon the circumstances, affect child custody, alimony, and property division orders made in the divorce case. Knowing where the law draws the lines is the best way to protect yourself and your children.
Custody and Parent-Time
Utah Code §81-9-204 requires courts to determine custody based on the “best interests of the child.” This statute directs judges to evaluate a parent’s past conduct and demonstrated moral character. Criminal behavior fits squarely into that analysis.
If a parent has been convicted of crimes involving violence, neglect, abuse (of the children, the spouse, or other family members), substance abuse, or other certain other crimes, that record will weigh heavily against him/her in a custody dispute. The law does not require that the crime be committed against the parties’ children themselves for it to matter. Utah courts look at whether the criminal behavior reflects poor judgment, instability, or danger to the child. A parent with a history of crime may be limited to supervised parent-time, no parent-time, or lose custody altogether.
For the non-offending spouse, the takeaway is clear: do not ignore or minimize your spouse’s criminal behavior. If you do, the court may question your judgment as a parent. Show the court that you understand the risks and are taking steps to protect your child from exposure to that conduct.
Alimony and Property Division
Alimony. Utah Code § 81-4-502 articulates the factors the court must consider when awarding alimony. This statute allows courts to consider marital fault when awarding alimony. § 81-4-501 provides that fault must “substantially contributed to the breakup of the marriage.” Criminal behavior often meets that standard, especially when it causes physical, emotional, or financial harm to a spouse or to one’s children.
At the same time, courts cannot order alimony beyond a spouse’s ability to pay. If your spouse’s criminal conduct has left him/her unemployed or incarcerated, that reality limits what the court can do.
Property division is based on equity, not an automatic 50/50 split.[1] If marital funds were wasted on criminal fines, restitution, or related debts, the court may assign those losses to the offending spouse. The law gives judges discretion to divide property unequally if fairness requires it.
Protective Orders and Safety
If your spouse’s criminal conduct involves domestic violence, stalking, harassment, or threats, you may have grounds for a protective order under Utah Code § 78B-7. A protective order can immediately grant you custody, restrict your spouse’s access to the children, and provide law enforcement tools to keep you safe.
Protective orders are not just about safety; they also signal to the divorce court that you are serious about protecting yourself and your children. If the criminal spouse violates the order, those violations strengthen your position in custody and parent-time determinations.
Avoiding the “Downfall”
The law does not hold you responsible for the criminal acts your spouse has committed. What matters is how you respond. If you take action to separate financially, establish safe boundaries, and protect your children, the court will see you as the responsible parent and spouse.
What drags people down is denial. If you minimize your spouse’s criminal conduct or allow your children to be exposed to it, the court may view you as complicit or as exercising poor judgment. Judges are tasked with safeguarding children’s welfare, and they expect parents to do the same. You yourself could be charged with a crime of failing to protect your children if you do not take the necessary steps to protect your children from a neglectful or abusive parent.
Don’t let “the sins of the father (or mother)” snare you, when you’re the innocent spouse.
When your spouse engages in criminal conduct, it creates real risks in divorce, both for the criminal spouse and for the innocent spouse. Utah statutes require judges to weigh that criminal conduct when deciding custody, alimony, and property division. The best way to protect yourself is to face the facts honestly, distance yourself from the wrongdoing, commit no wrongdoing of your own—whether by commission or omission and demonstrate to the court that you are putting the safety and stability of you and your children first. You cannot change what your spouse has done, but you can prevent his/her downfall from becoming yours.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1]https://www.utcourts.gov/en/self-help/case-categories/family/divorce/property.html.