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Divorce Questions: How Does Adultery Affect A Divorce Case?

Posted: 05/ 3/2012 1:44 pm Updated: 05/ 3/2012 1:48 pm

Cheating

Wondering how cheating could affect your divorce case? Here's what you need to know, from Katherine Eisold Miller, a collaborative lawyer and family mediator. Have questions? Ask in the comments.

Marriages can end when one member of the couple discovers that the other has had an adulterous relationship. How important is the impact of the extra-marital relationship on the divorce itself? Legally, the answer varies from state to state. In some states, there is very little impact at all while, in others, it can have a substantial influence on the outcome.

Historically, there was a much higher correspondence between adultery and divorce then there is today. Adultery by a woman was often viewed more seriously and punished more harshly than if committed by a man. This remains the case in some countries today, including Iran and Saudi Arabia, where an adulterous wife could face a violent death. In the United States, adultery remains a crime in some states but is rarely prosecuted.

These days, adultery rarely has much of an impact on the distribution of assets -- except in cases where one spouse has used marital assets to support the extra-marital relationship. For example, if a husband borrows against a marital asset in order to support his mistress, that fact would likely be taken into account in distributing the assets of the marriage.

Adultery is also unlikely to affect a custody determination so long as the wayward spouse has not carried on the relationship in front of the children or exposed them to inappropriate people or situations during the course of the affair.

In some states where fault is still a factor in divorce proceedings (even where no-fault divorce exists, in some states there is still fault-based divorce that -- when proven -- can impact support or property division) an adulterous relationship can seriously reduce (or even eliminate) the obligation of one spouse to pay alimony to the unfaithful spouse regardless of need. In addition, alimony already in place is often terminated when a spouse or ex-spouse lives with another person.

If the straying spouse happens to pick up a sexually transmitted disease, and later infects his or her spouse with that illness, that can give rise to a personal injury action between spouses called an interspousal tort.

Far and away the biggest, most likely and most problematic influence adultery will have on a divorce is in the negotiation of settlement. Statistically, divorce cases are overwhelmingly likely to settle -- over 90 percent or more in most jurisdictions. A cheating spouse often feels guilty or sheepish in the aftermath of discovery or confession and the cuckolded spouse typically feels angry and retributive. The emotional stance of each party coming into the negotiation can drastically affect the terms of the settlement.

When making important decisions about your finances, your children and your lifestyle it is important to be in as calm a state of mind as possible. People who make the best choices in their divorce negotiations are able to separate their actions from their reactions -- in other words, they are able to think about what is best for themselves and their families separately from the emotions they feel about the adultery. Choosing divorce lawyers and other professionals who can work together to support a family through all aspects of this painful situation is probably the best way to get through it successfully. More information about how this can work is available at CollaborativePractice.com and WestchesterFamilyLaw.com.

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Filed by Brittany Wong  |