Infidelity and Divorce

The reason a married couple wants to divorce can make a difference in divorce proceedings. Infidelity does not affect whether you can get a divorce in a no-fault divorce state. However, cheating can affect other matters important to the divorce settlement. Adultery can impact child custody, property division, and alimony negotiations.

Divorce laws are different in every state. To learn how infidelity can impact your divorce, talk to a local divorce lawyer.

Understanding Infidelity in Divorce

According to the 2022 General Social Survey, about 20% of men and 13% of women have admitted to infidelity during marriage. Cheating on your spouse can also indicate other problems in the relationship, including lack of communication, lack of intimacy, and incompatibility. Finding out about a spouse’s adultery is a common reason people get a divorce.

Infidelity as a Reason to File for Divorce

In most states, you don’t need a reason to file for divorce. In the past, couples needed grounds for divorce. Grounds for fault-based divorce include infidelity, domestic violence, and abandonment. However, you can file for a no-fault divorce without having to talk about extramarital affairs. In a no-fault divorce state, you can file divorce papers by claiming:

• Your marriage suffered an irretrievable breakdown
• You and your spouse have irreconcilable differences

With a no-fault divorce, you do not have to prove the other spouse violated their marriage vows. Any allegations of infidelity are irrelevant to the question of whether you can legally divorce.

The betrayed spouse may want to put the cheating spouse on the record for causing the divorce. However, there are reasons for avoiding claiming infidelity. If you do want to file for at-fault divorce based on infidelity, your spouse can dispute the reason in court. Your spouse can make claims against you and blame you for the divorce.

This will all be part of the public record. You can keep your life more private by avoiding filing grounds for divorce. Even if your partner was unfaithful, you might not want to bring it up in court. Talk to your family law attorney about your options to file for a fault or no-fault divorce.

Legal Implications of Infidelity

With a no-fault divorce, you don’t need to prove infidelity to get a divorce. However, the court may consider an affair for how it impacts the settlement, including:

• Determining child custody
• Dividing your marital property
• Ordering alimony or spousal support payments

Custody Arrangements and Infidelity

The court makes child custody decisions based on what is best for the child. There are many factors to consider for the best interests of the child. Factors considered in child custody include:

• The child’s wishes
• The child’s physical and emotional needs
• Physical and mental health of the parents
• Siblings and family members
• Parent’s decision-making
• Parent’s stability and fitness
• Cooperation of the parents

If a parent’s infidelity involves substance abuse or other dangers to the child, it could impact child custody arrangements. Generally, discreet infidelity does not play much of a role in custody cases. A parent may also have a difficult time gaining custody of the children in a divorce without the other parent’s consent if they were unfaithful and exposed their children to the infidelity or neglected their children because of the infidelity.

The judge will review various factors and evidence of the past relationship before making a custody decision.

Impact on Asset Division

In equitable distribution states, marital property is divided based on what is considered fair, which may not necessarily be equal. In community property states, all property and assets acquired during the marriage are marital property.

If one spouse spends money during the marriage on gifts, trips, and other expenses related to their infidelity, this can affect the division of property. Courts may give more marital assets to the non-cheating spouse if the unfaithful spouse wastes marital property on their affair partner.

Getting Alimony After Infidelity

Some states consider adultery in determining alimony or spousal support. Alimony is financial support paid to one partner after the marriage ends. Alimony can be awarded for a specific number of years or until the other spouse gets remarried.

The impact of infidelity on these aspects of divorce settlements is highly dependent on the individual situation. A court can consider the length of the marriage, the economic prospects of each spouse, and other factors.

Claim for Attorney Fees

Generally, each party pays their own legal fees in a divorce. You will pay for your divorce lawyer, and your spouse will pay for theirs. In some cases, a court may consider awarding attorney fees if one spouse’s adultery significantly impacted the divorce proceedings, but this varies by state and case specifics.

Legal Advice About Infidelity and Divorce

Cheating does not always affect child custody, division of assets, or alimony. However, some family law courts do consider these factors in the divorce proceedings. Get legal advice about how it can affect your divorce case if your spouse has committed adultery. Contact an experienced divorce attorney to protect your rights in a divorce.