Prior to the enactment of no-fault divorce laws in states across the U.S. (first enacted by California, in 1970; most recently by New York, in 2010), adultery was frequently cited as grounds for divorce. Today, most couples choose the no-fault option when filing, but cheating continues to be a consideration in many divorce negotiations, particularly if the cheating spouse has spent marital assets on the extramarital relationship. (Adultery also continues to be a crime in 21 states, but it is rarely prosecuted.)
How can cheating affect your divorce?
The premature leap: Although parties to a divorce often harbor anger or other negative feelings, few circumstances evoke the emotional intensity that infidelity does. Sometimes those raw emotions push one party to pursue divorce before thoughtfully considering whether they want their marriage to end. Having represented many spouses in divorce proceedings, we have come to recognize that infidelity is usually a symptom of discontent that can arise from any number of marital issues; many couples find that it is possible to resolve those issues and rebuild their marriage. For this reason, we generally discuss with potential clients whether they have pursued couples counseling or other alternative remedies before they go down the lengthy, permanent path of divorce.
Distribution of assets: Cheated-on spouses often mistakenly assume that they will come out far ahead of their cheating spouse in their divorce if they have proof of the infidelity. The reality is that courts do not take adultery into consideration in determining the distribution of assets, unless marital assets were spent on gifts – including jewelry, cars, or even apartments, dinners, hotel rooms, etc. as part of the infidelity. In these cases, the court often instructs that those assets spent on non-marital expenses be repaid to the marital asset pool or that a slight increase in the percentage of the assets be awarded to the non-cheating spouse; otherwise, assets typically are distributed in the same manner they would be have been if there had not been any adulterous behavior.
As an extreme example of this, we once represented a client whose husband’s mistress gave birth to his child during the divorce. The marital assets used to pay expenses related to that relationship were recaptured for distribution as marital property. We have also seen cases where a cheating spouse is maintaining an apartment for the extramarital partner. Again, if these expenses were paid through marital assets, they must be included as assets to be distributed in the divorce. In one case, a divorcing couple’s children had photos of expensive jewelry their father had bought his mistress on their tablets. Clearly, these are not expenses the non-cheating spouse should have to share (and allowing the children to become involved is not in anyone’s interest).
In the event that we are representing the cheating spouse, we generally advise them not spend money on extramarital partners during the divorce, to be honest about past expenditures, and to expect to face reasonable consequences as a result of their behaviors — namely that any marital assets spent on extramarital activities will have to be included for distribution of the marital estate. And while the non-cheating spouse often feels that they are not getting justice because the cheating spouse is not made to “pay” for their betrayal, they at least can have the peace of mind that they have not been cheated out of an equitable split of existing assets.
Custody: A court’s priority is always the protection of any children involved in the case. The judge may seek assurances that the cheating spouse is not introducing extramarital partners to the children during the divorce proceedings and that neither partner is denigrating the other parent to the children. But courts recognize that being a bad spouse does not necessarily make a person a bad parent, and they warn the parties not to conflate the two. In the absence of evidence that any extramarital activity has negatively impacted the children (for example, because the children have been improperly exposed to a new relationship or are being neglected as a result of it), custody is unlikely to be affected.
STDs: One of the worst potential consequences of infidelity is the possibility that a cheating spouse may bring sexually transmitted diseases into the marriage. We encourage clients in marriages where infidelity has been an issue to be tested because, in addition to this being an important measure for safeguarding the health of our clients, cheated-on spouses may be entitled to damages for treatment of any contracted diseases.
The bottom line is that cheating adds an extra layer of considerations to the divorce process. But when you approach it pragmatically and trust your attorney to guide you through its potential complexities, you can keep moving forward from a position of strength.