While infidelity is a common cause of why people divorce, it doesn’t necessarily always have an impact on your divorce’s legal proceedings. Infidelity may or may not affect your divorce case depending on certain factors. It rarely has much, if any, bearing on divorce proceedings, however, depending on the factors involved in the divorce, it may impact court decisions on child custody, alimony, asset distribution, and the like.
Here is what you need to know about infidelity in a divorce case. To obtain personalized counsel for your specific circumstances, set up a consultation with a divorce attorney.
How Much Does Infidelity In A Divorce Case Matter?
To the two people getting divorced? Probably quite a bit. To the courts? Not so much.
Adultery is more often than not part of the emotions and issues leading to divorce rather than the legal proceedings of the divorce. Courts generally want both parties to be able to put their emotions aside and negotiate reasonably. Prenups can help with this, as both you and your partner agreed on the terms without strong emotions influencing your decisions.
As mentioned above, infidelity in a divorce case rarely impacts your divorce case and the decisions the court makes unless there are certain factors involved, such as if the affair was paraded in front of children, negatively impacted them, or put them in some sort of danger.
Infidelity In A Divorce Case: At-Fault Vs No-Fault Divorce
In no-fault divorces, adultery may not be used against you. However, it may be grounds for an at-fault divorce. Bear in mind that at-fault divorces are more expensive, which can affect your decision to pursue a fault vs no-fault divorce.
Also, if you pursue a fault-based divorce, you will need to prove the infidelity and how it impacted your finances and the like. A no-fault divorce allows you to move on without having to try to prove that this happened. This can be challenging, especially since the cheating spouse will likely try to deny what they did.
Is Infidelity A Crime?
This depends on your state. Adultery is still defined as a crime in multiple states. In the handful of states where adultery is illegal, it is typically classified as a misdemeanor offense, though some classify it as a felony. Punishments range from fines to jail time to both.
However, in the majority of states, there are no laws against adultery. The number of states criminalizing adultery has decreased in recent years. This is due to the fact that adultery laws are considered outdated, are difficult to enforce, and are considered by many to be an intrusion by the government into personal relationships.
As such, depending on where you live, cheating spouses are more likely to face consequences in court decisions than they are to have criminal charges brought against them.
How Common Is Infidelity In A Divorce Case?
Infidelity is a very common reason for divorce. While statistics are conflicting, it’s estimated that anywhere from 15%-50% of divorces are spurred by infidelity. 88% of couples say that infidelity was a major factor in their divorce.
Men are more likely to have affairs than women are, although the cheating gap is closing. Men are more likely to be concerned with physical affairs while women are more likely to be concerned with emotional affairs. This plays into the type of infidelity each sex is more likely to commit, as men are more likely to cheat for sex while women are more likely to cheat in order to feel an emotional connection.
How Can Infidelity Impact Court Decisions?
While courts won’t punish your spouse for cheating in and of itself, unless you live in a state where adultery is still criminalized, the cheating may play a role in how your divorce plays out. This would depend on whether it had an adverse effect on children, the cheating spouse spent a lot of money on their lover, and similar factors. Being separated doesn’t make adultery not illegal in the states where it is, as you are still legally married even if you are separated.
You could also bring up to the court if you fear for your children’s safety around your spouse’s lover, such as if the lover has a history of abusive behavior. This can affect visitation and custody. Bear in mind that any claims you make will need to have evidence proving them and cannot be based on hearsay (for example: “I heard so-and-so say that they saw so-and-so do this”).
Some of the ways in which infidelity impacts court decisions in divorce are as follows.
Property division is generally not affected by infidelity. Prenups and postnups also make this process smoother during a divorce. However, this may not be the case if the cheater used a lot of money on their affairs, like expensive gifts or vacations or what have you. If your partner has used martial funds on their lover, this may be a factor in alimony.
Bear in mind that there are differences between community property and separate property. Marital property is property acquired during the marriage.
The general guideline for alimony is to prevent one of the spouses from being left with nothing. There can be temporary alimony. Many divorces do not involve alimony, but as mentioned above, if your unfaithful spouse spent a lot of your combined money on their lover, this may factor into alimony.
Factors impacting alimony include: the financial situation of each spouse (such as if one makes less than the other, or if one forewent their career in order to look after children, etc), the amount of property owned by each spouse, the financial/non-financial contributions to the marriage, how long the marriage was, the age and health of each spouse, and the like.
In most cases, infidelity in a divorce case does not impact child custody or visitation rights. However, if the children would be in danger, this can influence court decisions. The court generally wants to protect the children and make the decisions that would keep them safest.
If the cheating spouse’s lover has factors that can be unsafe for children, like drug use, etc, this can affect custody. However, as long as the person your spouse was with doesn’t present potential harm to the child, custody isn’t affected. The courts will examine the situation in order to ensure that the children aren’t in any danger.
Proving Infidelity In A Divorce Case
While you need evidence to prove infidelity, you need to be careful not to break the law in your efforts. If you illegally obtained evidence, it is inadmissible into court.
Whether or not your spouse had a reasonable expectation of privacy impacts this – such as going through your spouse’s text messages versus overhearing them talking on the phone. However, it can be illegal to record phone conversations without the other party’s consent. It can also be a crime to access another person’s computer or phone (aka emails and texts) without permission.
Social media posts aren’t private, however, so you can look at those. Remember that you can’t use hearsay (aka, “well so and so told me that they saw my spouse with this person”). The testimony will need to come from the witnesses themselves.
While there may be exceptions, you will need to be careful to work with an attorney to ensure that you don’t end up breaking laws trying to prove your spouse’s infidelity. Lawyers can look into credit cards and bank statements that can prove what your spouse was spending money on. They will be able to provide you with advice on how to gather evidence legally.
Does Infidelity Play A Role In Your Divorce?
If you want to divorce your spouse and you want to know how infidelity specifically impacts your case, contact the lawyers here at Kaufman, Nichols, & Kaufman to set up a case consultation. We’re here to help you get the decision that you deserve.