Why An Affair May Not Matter In Your Divorce

04/29/2013 12:02 pm ET | Updated Jun 29, 2013
  • Susan Saper Galamba Divorce and Family Law Attorney, Author of 'Don’t Burn the Underwear,' Legal Analyst, Media Personality

"He slept with his secretary." "Except for spending all of my money, she never did a thing for the kids or our marriage." "I'm taking everything, including the kitchen sink!" Emotional reactions like these are extremely common during a divorce. However, they have no place in the divorce proceedings where the need to prove fault has been eliminated, and the conduct of the other party is not a factor considered by the court when granting a divorce, dividing property or entering support orders.

Although many people believe the elimination of the blame game helps alleviate the emotional and financial expense of divorce, there are many others who believe the judicial system isn't fair because they never got to tell the "real" story. This is especially true if a person believes he or she has been wronged. However, it's important to remember that in no-fault states, there is a huge difference between a moral wrong and a wrong which can be considered by the court. So before you jump full bore into extracting revenge on the person who has done you wrong, think about the following scenarios, and find out whether your revenge will be more costly to you or your spouse.

1. Extramarital Affair: Although the ten commandments forbid the sin of adultery, it isn't a legally punishable sin in a no-fault divorce. The pain a person endures when discovering his or her spouse has been unfaithful is gut wrenching. However, the court doesn't have the power to punish a party for his or her moral transgressions. Even though the court may be able to consider the money a spouse spent on an affair, think twice before you navigate down this path, as the time and money spent searching for dissipated assets frequently far exceeds the money a court might award for the actual dissipation.

2. Control: A common complaint among people getting divorced is that the other spouse was controlling, and the control significantly limited the opportunities available to the non-controlling spouse. For example, a spouse might claim he or she would have either worked outside of the home or taken a different job if the controlling spouse would have allowed it. Thus, the non-controlling spouse is likely to want to argue the only fair thing to do would be to give him or her more of the marital estate, and in essence, punish the other spouse for his or her controlling nature. The fatal flaw with this argument is that the judge neither chose your spouse, nor made you get married. Moreover, the judge is not going to second guess decisions made during your marriage, even if they were due to a controlling spouse.

3. Abuse: Whether emotional, physical or both, abuse is a horrendous, but if you live in a state where the court will not consider fault, abuse is not a factor considered by the court when dividing property or awarding support. While many states allow no-fault and fault grounds for divorce, be certain that the facts of your case, not just your desire, support how you proceed. Even if you have a mental health expert who will testify your spouse emotionally abused you throughout your marriage, the issue will be whether the judge will consider the abuse in the division of property or orders of support.

The concept of not being able to tell your side of the story is often a hard pill to swallow, especially if a spouse feels like he or she has been wronged. However, it's important to remember there are two sides to every coin, and while a no-fault divorce may not seem fair, it works both ways. Even though you may not get to tell your side of the story, your spouse will be prohibited from sharing his or her condemnation of you as well.