The Sting of Adultery, Part 3

In parts 1 and 2 I discussed how adultery impacts you as a person as well as the impact to your children. The final focus area is on the last major aspect impacted; your case. When you talk about the types of divorce, there are basically two; fault-based and no-fault. The no-fault divorce was introduced in the United States initially in California in 1970, with New York becoming the last state to legalize it in 2010. Prior to 1970, or the year legalized in each particular state, the only means to legally divorce was fault-based where one party had to be found at fault in the marriage. Adultery and abuse were the main fault-based reasons for granting a divorce, and still are today. While statistics vary based on sources, it is estimated that between 30%-60% of married people cheat on their spouse. Even with these high numbers, and the availability of fault-based divorces, the vast majority of divorces filed today are no-fault based. The disparity between infidelity rates and divorce type filings makes you wonder if proving adultery is worth your time.

When looking at the legal costs, not only in money but also in time and emotional capital, of divorce, the track to prove a fault-based divorce is the most draining. The other party most likely is not going to just agree and admit to the wrong-doing. Instead, you have to prove the fault and go through the entire legal process with gathered, analyzed, and undisputable evidence. Many will start down this path, but as they learn the length and difficulty of the road, they choose to settle the divorce based on no-fault. These people discover they can get the outcome they desire, or maybe are most likely to be awarded in the final court hearing, simply by settling and removing the fault from the basis. They look ahead and learn the areas where proving adultery can help their case and where it really doesn’t matter.

An old boss of mine once told me divorce really comes down to just two things; kids and money. The category of kids is pretty simple, where they live and when you get to see them. Everything else is money. It involves alimony, child support, house, cars, savings, property, and about everything else. When you look at adultery and its impact on a divorce, it’s easy to think in those terms. For kids, where they live and when they see their parents, the only way adultery will play in is when the activity is rampant, flagrant, and in front of the kids. Nearly all the time, though, it is an offense between the parents, so it doesn’t involve the kids. As a result, it doesn’t affect a custody decision.

In terms of money, adultery can have an effect in some of the areas. Child support is based on custody and income, so adultery will have no impact here. But in some areas of the country it does have impact on alimony, either the amount, the duration, or both. All the other property divisions, like cars, savings, and the home are just not a result of adultery. Some areas may lean a little in favor of the person not at fault. But you shouldn’t expect anything beyond a 40/60 split. With so little impact, you have to wonder whether to concern yourself with adultery at all. The very low amount of at-fault divorces in the country is a likely indicator that many share the same question.

The answer to me is its power in negotiations. Very few people, especially moms, want a divorce on the record that shows them at fault for divorce on the grounds of adultery. It may take some time, but just having adultery as an option in the final ruling will bring many to the negotiating table. Every divorce is different, but a common factor for all is the existence of areas where each party can’t initially agree. Any negotiating course will tell you the power of leverage. When you have something the other side wants, you have leverage. Adultery, specifically court admissible proof of adultery, can be your leverage to help unstick some of the points in your favor. You may end up with a no-fault divorce, but you will have won some of your desires.

When you are on the receiving end of adultery, the sting certainly affects you in many ways. Your children are also the victims of adultery’s damage. While there are few actual legal advantages for the party not at fault in adultery, there are absolutely no advantages for the cheater! I’ve never heard an example where proving adultery actually hurt someone’s case. It certainly won’t win all the kids and money, but it can have good effects on your case. If you have the ability to prove it, you should gather the evidence. You may not need it, but that’s a better alternative than needing it and having never collected it. The impact to your case is the one area where the sting of adultery is actually on the one who broke their end of the marital bargain.


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