Any divorce is an emotionally charged process, but a divorce where one party is being accused of adultery can be particularly fraught. Cheating usually has catastrophic effects on a marriage, but how will it affect the divorce settlement once that marriage is coming to an end? In particular, you may be wondering whether the fallout from an affair is likely to affect asset distribution or child custody. This can seem like an even more daunting issue if the accused party is denying that the affair ever took place.
Unfortunately, the effects are adultery are, like most aspects of divorce law, variable based on the state that you and your spouse reside in. Although you will want to speak with your lawyer about the laws specific to your state, there are some general pieces of knowledge that you should have as you begin the process.
At-Fault vs. No-Fault Divorce
Prior to 1970, all divorces in the US required that fault for the divorce be assigned to one party. Over the past 40 years, almost all states have since moved to allow no-fault divorces. In a no-fault divorce, both spouses agree that the marriage is ending due to irreconcilable differences and that neither party is to blame for the dissolution of the marriage. New York was the last state to require that fault be established for a divorce, only finally allowing no-fault divorce proceedings in 2010.
While all states now allow for no-fault divorces, many states provide an option to pursue an at-fault divorce. In an at-fault divorce, one or both parties attempt to established grounds for divorce by claiming that they were in some way wronged by the other party. Unlike no-fault divorces, at-fault divorces often involve lengthy litigation as the court attempts to determine blame for the failed marriage.
Is Filing an At-Fault Divorce Worth It?
Although many states still allow you to file an at-fault divorce, it is rarely worthwhile in cases of adultery. You will be forced to enter into a lengthy period of litigation in order to prove infidelity, and ultimately, it may have little or no impact on your actual settlement. In particular, you should not expect a spouse's infidelity to meaningfully affect the distribution of assets or your custody arrangements. While this may not be satisfying, it is important to understand this aspect of divorce law so that you can avoid legal hassles and complications that will only serve to add expense, time, and emotional turmoil to the process.
Exceptions to the Rule
There are two notable situations where adultery can potentially affect the outcome a divorce: spousal support and cases where an adulterous spouse spent marital money on the person they were cheating with. This latter case falls under the concept of dissipation, which is simply a term used to describe any situation where marital money is spent on something that does not benefit or is harmful to the marriage as a whole. In this case, and if the dissipation can be proven, it can have a sizable impact on the final distribution of assets.
For alimony, the impact of adultery will vary significantly from state to state. Depending on your particular jurisdiction, it is possible that infidelity will have no effect whatsoever on spousal support. In those states where it is taken into account, it is rarely the determining factor.
Talk to a local divorce attorney for more information.