In the past, you had to prove fault to obtain a divorce. Adultery was one type of fault. While there is no doubt that infidelity wreaks havoc in many marriages and leads to divorce, it is not a recognized reason for divorce. Now only one party has to establish that the marriage is irretrievably broken. This is a low evidentiary standard. If a party states it under penalty of perjury or testifies this is the case at trial, the court will divorce the parties—even if the other spouse does not want divorced. Nevertheless, infidelity may be relevant in a divorce case. This blog explores why as it relates to a divorce and division of assets and child custody, additionally identifying how an affair may play into the duration and cost of the divorce.
On divorce, the court must divide and allocate all the property or assets (real and personal property and its debt). The obvious question comes with some thought. If an affair is not a necessary component in a divorce, then, “How could it be relevant to divorce?” The answer is, “it depends”. Many relationships come into play in a divorce in property division or custody consideration. For instance, you or your spouse’s relationship with a credit card company (read: “credit card debt”) may well be a significant consideration in your divorce. Someone has to be ordered to take on the responsibility for the debt. With an extra-marital affair, it is common to find credit card debt or payment of marital funds for a trip with, expenses for or gifts to a lover. This may be considered dissipation of marital assets and leads the court to apportion this debt to the spouse who allowed it to be incurred or make an unequal division1 of assets to the other spouse. This is but one example of how an extra-marital affair may make its way into relevant evidence.
Where there are children, the divorce court must make a custody decision that is in the child’s best interests. There are numerous ways an affair that led to the divorce filing may make its way into the evidence. For example, a spouse may present evidence this paramour is being put into the role of caring for the children in place of the actual parent. Given parents have a fundamental right to raise their children, this may lessen the chances that the offending spouse obtains custody. Furthermore, lovers-and-soon-to-be exes have a unique way of aligning with each other in divorce and post-divorce proceedings; it may well be established that by the affair the parent who had the affair has some other issues inconsistent with having custody in the child’s best interests—this may reflect a larger pattern of risky behavior that is relevant to custody decisions before the court. The court—which looks out for the best interests of the children—normally makes custody decisions that have the most stable parent taking care of the children. There are numerous ways an affair may play into child custody decisions.
Finally, although not necessarily relevant to the court’s decision on division of assets or custody, where there are children, a spouse who is wounded by an affair may unwittingly use the divorce process to “punish” the other spouse by taking unreasonable approaches or having legal objectives that are not realistic. What this means is he or she may use a variety of legal tools that may not be overall cognizant of life post-divorce and drag the divorce on for years and spend enormous amounts of money advocating their position. Ultimately, there is very little an attorney or court can do to limit this behavior—everyone is entitled to representation and his or her day in court despite where it may leave the parties in the future. In other words, the spouse who had the affair is seeking to have a divorce in a smooth, orderly and less expensive way to move on in life. The other spouse is fighting on principle (and emotion) and the fight of the divorce itself is the dynamic he or she seeks for justice. This is a toxic dynamic.
Ultimately, an affair that leaves a spouse scorned may have significant legal consequences and be relevant in court, notwithstanding there is no-fault divorce. Identifying how an extra-marital affair may play into a divorce or post-divorce scenario is the first step in mitigating its implications for both parties. This blog was written by attorneys at Ciyou & Dixon, P.C. It is provided for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- By statute, the Court starts with the presumption it is to divide the marital estate equally.