One of the harshest realities that many clients seeking a divorce face is the idea that cheating is unlikely to significantly affect how the judge rules on their case.
Many people are familiar with Frank Sinatra's infamous 1938 mugshot. However, only the real history buffs know that Sinatra’s arrest was due to adultery, meaning he was sleeping with a married woman. However, modern law has changed exponentially in regard to how the court views extra-marital affairs, and subsequently, it has little impact on the judge’s decision-making. Let’s walk through a hypothetical to see how this scenario would play out today:
Client A comes to our office stating that she wants a divorce from her cheating partner, spouse B, and wants to know how spouse B’s cheating will affect the division of marital assets/debts. Unfortunately, the most likely answer is that it won’t cause a meaningful difference in the distribution of marital property. Despite spouse B cheating on client A, the house, and other marital property, is still likely to be split relatively evenly. Sadly, it probably won’t matter if children are involved. In the eyes of the court, spouse B’s cheating on client A should not impact his parenting time.
Yet, that does not mean the courts refuse to take cheating into account at all. For example, if spouse B’s bank statements demonstrate that he was spending money on items such as hotel rooms, dinners, or gifts for his affair partner, these are pieces of evidence that are still important to the court. Alimony, also known as spousal support payments, may be halted by the court to prevent the non-cheating spouse from being forced to pay the cheating spouse after the parties are divorced. When it comes to child custody, cheating will influence the court if it can be proven that spouse B’s affair partner was around the parties’ shared children, or if spouse B was abrogating his parental responsibilities to be with his affair partner.
Ultimately, the law has become significantly more cheater-friendly over the last 100 years. While infidelity is the leading cause of divorce in America, courts are struggling to determine what the correct punishment should be for these cheating spouses. Likewise, attorneys are struggling to properly advise their clients on what they are entitled to in the eyes of the law.
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