Infidelity and Divorce

The reason a married couple wants to divorce matters in legal proceedings. Technically, a reason like an infidelity does not affect whether you can get a divorce in a no-fault divorce state. But cheating can affect other matters important to the divorce settlement.

Is Infidelity a Good Reason for Divorce?

In a true no-fault divorce state, you do not have to show any specific reason for your request to end the marriage. An unfaithful spouse does not need to come up in the case at all.

Instead, your petition for divorce may state:

• That your marriage suffered an irretrievable breakdown
• That you and your spouse have irreconcilable differences in your relationship or life

The party seeking a no-fault divorce does not have to prove that the other party violated their marriage vows. Any allegations of infidelity are irrelevant to the question of whether you can legally divorce. However, the court may consider an affair as it pertains to specific matters of the settlement, such as:

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

Cheating Spouses in “Fault” States

While all states have some form of no-fault divorce, these states may consider infidelity in their divorce cases, and you can sue your ex or their new partner:

• Hawaii
• Mississippi
• New Mexico
• North Carolina
• South Dakota
• Utah

These states also have alienation of affection laws that review the feelings of spouses and the health of a marriage before the cheating began. Judges can declare the affair and the new partner are to blame for wrongful conduct that led to the divorce.

Who Pays for Divorce If There Is Adultery?

While both parties will pay their respective law firm or attorneys for their services during a divorce case, the judge can decide on alimony or a settlement amount that covers your court costs. A judge can also declare payments for any emotional distress the cheating put you through.

If your ex cheated on you and your divorce case did not address this, you may have options to sue for emotional distress in a separate lawsuit. Your family law attorney is the best person to discuss these options.

Can a Cheating Spouse Get Full Custody?

Often the question of moral fitness to be a parent arises in divorce cases involving contested child custody. Discreet infidelity or other marital problems may not influence custody arrangements.

However, a parent may 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
• They neglected their children because of the infidelity

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

Can a Cheating Spouse Get All the Property?

In equitable distribution states, there is an assumption that marital property will be divided equally in a divorce.

However, if one spouse spent money during the marriage on gifts, trips, and other expenses related to their infidelity, the court may intervene. Courts may decide the fairest division of marital property gives more marital assets to the non-cheating spouse. Typically this is because they did not spend the couple’s money being unfaithful with another person.

Getting Alimony After Infidelity

While each state allows couples to obtain a no-fault divorce, some of the no-fault states have statutes that consider adultery in determining the alimony. Alimony is financial support paid to one partner after the marriage ends.

These states reconcile this position by reasoning that while infidelity is irrelevant to whether you can get a divorce, infidelity can still be relevant in determining the specific elements of the divorce settlement, such as alimony.

The impact of infidelity on these aspects of divorce settlements is highly dependent on the particular facts of the affair(s).

Cheating may not affect child custody, the division of marital property, and the allocation of alimony. But if one partner cheated, the particular way they committed adultery can significantly affect the outcome of a divorce. Talking to an experienced family law attorney about whether to make cheating an issue in your divorce is something you should consider.