What Happens in a Divorce if Your Spouse Had an Affair?
By Stephanie Reid
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The impact of adultery on divorce proceedings varies from state to state and each jurisdiction places a different weight on allegations of infidelity. In some states, allegations of infidelity during the marriage can impact alimony, property division and even custody determinations. In other states, adultery in the marriage makes little difference in the ultimate resolution of ancillary divorce matters. As adultery can be difficult to prove, many couples pursue a no-fault divorce action, which does not require either spouse to prove misconduct on the part of the other spouse.
Adultery as a Ground
Depending on your jurisdiction, you may be able to cite adultery as a ground for divorce. Not every state offers this option, however, and you may have to file for a no-fault divorce, which simply requires a showing of irreconcilable differences or irretrievable breakdown of the marriage. In a no-fault divorce situation, the judge may consider evidence of adultery when deciding other matters related to the divorce, but will not require evidence of the affair to grant the divorce. In a fault-based divorce, the filing spouse must present evidence of the infidelity and prove to the court's satisfaction that adultery led to the breakdown of the marriage.
Alimony, or spousal support, is an amount of money awarded from one spouse to the other pursuant to a marital settlement agreement or divorce decree. Alimony can be awarded in one lump sum or monthly installments. In some states, including states that only allow no-fault divorce, a judge may be granted the authority to take a spouse's misconduct into account when deciding whether to award alimony and in what amount. For example, evidence of adultery may bar the unfaithful spouse from receiving alimony.
In every jurisdiction, courts require spouses filing for divorce to meet certain residency requirements. This means that a spouse filing for divorce must be a resident of the state where he is filing for a specific amount of time, typically six months. In some states, such as New Jersey, the court will waive its residency requirement if the filing spouse alleges adultery as grounds for divorce. In this case, the court will permit immediate filing.
There are two ways of dividing marital assets. The first, used in community property states, is to split all marital property equally between spouses. The second, used in equitable distribution states, is to divide property between spouses in a manner that is fair and just, though not necessarily equal, after evaluating several factors set forth in state law. In both community property and equitable distribution states, the judge will only divide marital property, which is property acquired by spouses from the wedding day forward. Any property obtained prior to marriage or during the marriage by inheritance or gift is considered the separate property of the spouse who acquired it. If separate property is commingled with marital property, the judge may give the spouse claiming the property is separate property an opportunity to trace the assets, either separate or marital, used to acquire the property through an examination of bank records and other helpful resources. If the property cannot be adequately traced to a separate property source, the asset will be considered marital property and subject to division between the spouses.
Regardless of jurisdiction, it is uncommon for a judge to consider marital misconduct when dividing property. Some states have even written a prohibition against considering marital misconduct in property divisions into their statutes. However, a common exception exists for cases that involve a spouse's dissipation of marital assets in the pursuit of an affair, especially if the behavior is egregious. For example, when a cheating spouse uses marital funds to purchase expensive jewelery or luxury vacations for his mistress. When this occurs, courts will often award the innocent spouse additional marital property to compensate for assets lost to the affair.
Although an affair's impact on custody determinations can vary from state to state, in general, allegations of infidelity are not a factor in child custody disputes. However, certain exceptions exist when the adulterous affair has a negative impact on a child. In every jurisdiction, courts are required to make custody decisions in the best interests of the child. Therefore, if an affair caused the child stress or anxiety, or affected the child's overall well being, the court may award custody or visitation in a manner that minimizes the child's exposure to the relationship.
Stephanie Reid has been writing professionally since 2007, with work published in the Virginia Bar Association's "Family Law Quarterly" and the "Whittier Journal of Child and Family Advocacy." She received her Juris Doctor from Regent University and her Bachelor of Arts in French and child development from Florida State University. Reid is admitted to practice law in Delaware and Maryland.