Divorce is hard enough on its own, even more so when infidelity is involved. Emotions are bound to run high and while divorce is a legal process, it’s also deeply personal.
If you’ve been wronged by a cheating spouse, you might hope for consequences in the divorce process to reflect the hurt and betrayal that you feel. But adultery is not illegal on its own. An affair can affect divorce property distribution only in limited ways. Whether adultery affects your divorce settlement financially or not, the emotional fallout from an affair can leave a significant mark on your divorce proceedings.
In over half of the consultations, I do each month, I’m asked questions regarding the effects an affair may have in a divorce. Unfortunately, it’s not a black-or-white answer. As I explain, it depends on where you file the papers. That’s because divorce laws vary wildly from state to state. Infidelity can have an impact on your marriage settlement, but only under certain circumstances. Cheating is one of the most common reasons for divorce, and a judge can take it into account if you or your spouse file for a fault-based divorce instead of a no-fault divorce.
No-fault divorces and at-fault divorces are the two legally defined divorce categories courts recognize. The former implies that neither spouse is responsible for the dissolution of the marriage, while the latter assigns fault to a spouse.
Seventeen states in the U.S. are considered “no-fault states” for divorce, they are: Wisconsin, Oregon, Washington, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado, and California.
However, all states do recognize no-fault grounds for divorce, even if they have at-fault laws on the books. That said, a judge will consider the wasteful dissipation of assets in any divorce case, so infidelity can affect the outcome of a no-fault settlement. Let’s discuss this in greater detail below.
In a no-fault divorce, there is no single stated reason that triggered the divorce, usually, this is summed up as “irreconcilable differences.” If you file a no-fault divorce, neither you nor your spouse makes any claim you must prove to the judge for the divorce to proceed.
A fault-based divorce points to one of six reasons (grounds) for the divorce: adultery, cruelty, felony conviction/ imprisonment, bigamy, abandonment, and mental illness. If you’re a party to a fault-based divorce with allegations of infidelity, the accusing party will file on the grounds of adultery.
Wasteful Dissipation of Assets (Marital Waste)
There is a circumstance when a judge might award a greater portion of marital property to one spouse regardless of grounds (or lack thereof) for divorce: wasteful dissipation of assets.
The wasteful dissipation of assets refers to using community property for either spouse’s sole benefit. Common examples of wasteful dissipation can include gambling, purchasing drugs, and spending money on an affair (gifts, expensive vacations, dinners, etc.).
If either party funds their infidelity with community assets, the other party can allege wasteful dissipation. If proven, this can result in a greater portion of community property to compensate for the overall reduced value of the marital estate that a spouse’s affair caused.
If you know or suspect that your spouse is having an affair, you may have to investigate how the affair has affected your marital estate. An investigation could involve a forensic accounting or audit of all your jointly held assets or bank accounts to weed out any unfamiliar transactions.
Impacts on custody
Divorce can be even more stressful when you have kids. An affair can make co-parenting more difficult, as this is often the cause of emotions running high. If you end up sharing custody of your children, they may end up living part-time with your ex-spouse and their new partner. It’s natural to be concerned about them staying under the same roof as a potential stranger.
While adultery on its own won’t affect the outcome of a child custody dispute, certain facts could become relevant when considering the best interests of minor children. A court may consider adultery a determining factor in custody issues if:
The spouse’s cheating has caused actual emotional harm to the child, or the adulterous relationship would adversely affect the child’s home environment. If you want to challenge your spouse’s right to custody on either of these claims, you must have actual evidence to show as proof. Merely engaging in an affair isn’t enough to qualify a parent’s behavior as adverse or harmful under the law.
For example, claiming your spouse’s home is unfit because they have too many sexual visitors or their new partner is a “homewrecker” may backfire if you bring it up in family court. When it comes to custody, courts want to see both spouses put their anger, hurt, and betrayal aside for the well-being of their children. Holding an emotional grudge or trying to use the family court system to punish your spouse for cheating may undermine your custody case.
While adultery on its own won’t affect the outcome of a child custody dispute, certain facts could become relevant when considering the best interests of minor children. A court may consider adultery a determining factor in custody issues if there is proof of potential harm or adverse effects such as:
- The spouse’s cheating has caused actual emotional harm to the child, or
- The adulterous relationship would adversely affect the child’s home environment.
- Your spouse’s new partner has a documented history of violence or abuse.
- Your spouse’s new relationship is causing them to neglect your kids.
- Your spouse taking reckless or dangerous risks for the affair.
However, you must present actual evidence or testimony showing an adverse effect on your children’s safety when they stay with your ex and not just accusations based on emotions.
Finding out about your spouse’s infidelity either before or during the divorce process will stir a lot of emotions and animosity. It raises the emotional and possibly financial stakes. Often, people feel burdened with guilt and decide to tell their soon-to-be ex about the affair. My thought on that is, why? Why would you risk your settlement because of guilt and regret? Also, if your spouse has no idea, why then, would you cause them pain? There are times when unburdening yourself results in unnecessary pain for your ex.
Rather, work on yourself and the emotions you’re experiencing with a therapist.
Just remember – if you do admit to cheating, your partner may decide to litigate your divorce, seeking more money for compensation for the infidelity. And my motto is, “If you’re a man, Family Court is not a good place to be.”
Hayley Botha
The Divorce Coach for Men