The Effect of Adultery on Divorce
Man with finger to his lips - betrayal. Don't ask don't tell.With the advent of no-fault, seeking a divorce based upon adultery became less and less common. While scorned spouses still may get emotional satisfaction from filing divorce papers that publicly proclaim that their spouse cheated on them, there is little legal reason to pursue that kind of claim.
Infidelity generally has no impact on custody, child support, or parenting time at all. The only time a spouse’s affair will affect the “kid issues” in divorce is when the affair itself directly affected the kids.
That rarely happens.
Unless your spouse dragged your two year old into a brothel, your spouse’s infidelity probably didn’t directly harm your kids.
Adultery also rarely affects the division of property in divorce. In almost all states, the fact that one spouse cheated does not normally mean that the other spouse gets a bigger piece of the marital pie. There is, however, one exception to this rule: dissipation.
Money tree with leaves/money blowing away due to dissipation.Dissipation is a legal concept that means that one spouse spent marital money for a non-marital purpose. Translated, that means that one spouse spent money on his/her affair partner.
While going after your spouse for all the money s/he spent on someone else sounds totally fair, in practice, proving dissipation can be tedious and expensive.
Even when your state (like Illinois) provides that, once you allege dissipation, your spouse must prove that s/he DIDN’T dissipate marital assets, dissipation is still a tricky legal issue. It often requires you to spend days scouring credit card bills and sifting through boxes of old receipts.
Sometimes, your efforts pay off. Sometimes you find the “smoking gun.” You find the receipt that proves your spouse took a $20,000 trip to some exotic place with his/her paramour.
More often than not you find a few scattered restaurant bills and maybe a receipt for some flowers. When that’s all you’ve got, the price you pay in attorney’s and accountant’s fees is often way more than the dissipation you found.
Of course, if your spouse has been living a double life for years, the dissipation in your divorce can be significant. The same thing is true if your spouse started living with his/her “sweetie” long ago. In those kinds of cases, proving dissipation can be well worth the effort.
Alimony, Infidelity and Divorce
The one aspect of divorce in which your spouse’s infidelity can still have a sizeable impact is in the area of spousal support. Even still, the impact that it has is still way less than what it had in the past.
In a little less than half of the states, your spouse’s misconduct (i.e. adultery) has no impact on alimony whatsoever. It doesn’t affect whether your spouse has to pay alimony, how much s/he has to pay, or how long s/he has to pay it.
In a very small number of states, your spouse’s adultery has a huge impact on alimony. For example, in North Carolina, if the court finds that the paying spouse committed adultery, the court shall order that spouse to pay alimony to the dependent spouse. If the dependent spouse committed adultery, then s/he cannot receive alimony.
Most states, however, consider adultery only as one factor in the decision of whether to award alimony. The laws in several of those states specifically state that alimony cannot be used to punish an adulterous spouse. The adultery is simply one of many factors a court may – or may not – decide to consider when deciding whether to award alimony.