Adultery. It’s the basis of many movies, songs, and really great 48 hours mysteries. While adultery can play a role in a breakup of many marriages, it is never the sole reason why a couple is calling it quits. Rather, I see adultery as the symptom of a greater problem in the marriage. Do you agree with me?
Regardless, being cheating on sucks and it is very likely that you are hoping to get revenge in your divorce case. Sound familiar? But how much do allegations of adultery actually affect a divorce ? The answer may surprise you. The answer may also make you angry.
Gather around. It’s story time.
A few weeks ago I got an email from a spouse that I do not represent, a/k/a the other side. I had represented her husband in a child support action against his first wife. Around the holidays, our firm sends out cards thanking our clients. And so, we sent a card to this one. To be clear, while I knew that he and his second spouse had been experiencing some discord, I had not heard from him in awhile and had no clue they were no longer living together. If I had, we would have sent the card to his new address. Or not sent it at all.
In her email, she sarcastically thanked me for the card (again, it was not addressed to her) and chided me for representing a man without a “moral compass.” According to her email, her husband had committed adultery and this was the first Christmas after she discovered it. I was aware of none of this.
While we can debate the appropriateness of her opening mail that was not addressed to her, the point of my story is that it is no secret that cheating, adultery, having an affair, etc. will have a deep emotional affect on the parties in a divorce action. And because of this, adultery will likely cloud many of the actions and decisions made by both spouses when it comes to dividing property and deciding custody.
But . . . .
You knew that was coming right?
It does not have as much of an affect on your divorce case as some would like. Are you disappointed? Do you want to disagree? Yell at the screen? It’s okay I get it.
In this article, I’m going to cover 3 ways that adultery may (or may not) affect your divorce.
- Adultery will unlikely affect your property division;
- Adultery may affect your alimony award; and
- Adultery will unlikely affect your custody case.
Ready to have some more divorce myths about adultery and divorce busted? Let’s go.
Adultery will unlikely affect your property division
While some states still require “fault” for a divorce to be granted, the majority of states are “no fault.” In English, this means that neither party has to prove that the other was “at fault” for the end of the marriage. Rather, the parties just have to show that they have “irreconcilable differences” or that there was a “breakdown” of the marriage to ask for, and get, a divorce. It’s faster and a lot cheaper!
Despite this, I have a lot of clients who think that they should get a higher percentage of the marital estate in the property division if their spouse cheated. However, adultery generally has little affect on the division of marital property, particularly where the court is concerned.
Rather, the court looks at the financial situations of the parties, not the reason that their marriage has ended, when deciding how to divide the marital estate. This is very distressing for many spouses, particularly the person that was cheated on? Do you think this is unfair?
Remember, you need to look at the division of your marital estate as a dissolution of a business. While it may be hard to put your emotions out of mind, particularly if you feel betrayed by your spouse, you need to set them aside when it comes to dividing your assets and debts. Failing to do so will not get you any more money. Rather, it will only get you higher legal bills and extra baggage that you don’t need to take into your post-divorce life!
Have you just separated from your spouse because of adultery or another reason? Make sure that you get a free copy of my checklist detailing what to do if you just separated from your spouse!
Adultery may affect your alimony award
While infidelity may not tip the scales in the property division, it may have an affect on an alimony obligation. Liz, say what? Why would it affect alimony but not property distribution?
It depends. Let me explain.
Is the person who committed adultery the one that is requesting alimony? If so, then they may not be eligible for an alimony award. Again, let me explain with another question. Is the requesting spouse still in a relationship with the person with whom they had the affair such that they are living together or considering marriage after the divorce is final? Then, under some states’ rules, the requesting spouse would not be eligible to ask for support from their former spouse in the way of an alimony award.
Why?
The purpose of alimony is to help the spouse that needs the money to pay for their expenses after separation. If they are living with someone else (or remarried) that new person takes the place of the former spouse in regards to helping to satisfy their expenses. It doesn’t matter if the new significant other makes more or less money than the previous spouse.
What if the person requesting alimony cheated but is no longer with or, at least, is not planning to remarry the “other person”?
Then, their request for alimony may still be successful. While this may not seem fair, you need to remember that the court is not scrutinizing the reasons for the end of the marriage. Rather, they are simply focused on the spouse’s ability to pay for their post-divorce expenses and award alimony (or not) accordingly.
Adultery will unlikely affect your custody case
In my experience, most clients want adultery to have an affect on the division of marital property more than they want it to affect their custody schedule. Do you agree?
This makes sense to me. Sex and money always seem to go hand in hand right? And while the first may make the kids (I know bad joke), I just don’t see clients making the same connection in their custody cases. And that is a good thing.
Why? Because even if someone was not a good spouse (because of adultery or otherwise) that doesn’t necessarily mean that they aren’t a good parent and/or shouldn’t have a relationship with their children.
Will adultery ever factor into a custody matter?
It’s generally not the adultery that becomes the issue in a custody case but rather the character of the person with whom the parent had the affair which can become an issue. Let me explain.
What if one parent chose to have an affair with a person that had a criminal record, was abusive, or had addiction issues? A court may consider that when assessing the judgment of that parent, particularly if the other parent can prove that the cheating parent is or has put this new relationship before the needs of his/her children.
Also, what if the parent committed adultery with a person close to the family such that it is causing psychological issues for the children? In that case the court may consider the affair when awarding the cheating parent custodial time. Or, the court may order that the new significant other not be around the children for a period of time.
In general, the courts really try to keep marital misconduct claims out of custody cases. So, don’t think that because you cheated (or where cheated on) that it will give you an advantage in your custody action. It likely will not and trying to argue that it should could be bad for your case.
Need more information about divorce?
Whether you like it or not, the fact that your spouse cheated on you is likely going to have little affect on your divorce matter. While it may be hard to let the emotions go, you need to set them aside to resolve your matter. Are you ready? I hope so!
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Was adultery an issue in your marriage? How did it affect your divorce, if at all? Let me know in the comments!