Cheating Spouses

Infidelity and unfaithfulness is, unfortunately, one of the most common grounds for divorce. When a person is cheating on his or her spouse, he is susceptible to a divorce based on “adultery.” A divorce based on adultery is just one of the “fault” kinds of divorce. It requires the party filing the divorce to prove that his or her spouse broke the marital vows by committing adultery with another person.

However, in common practice, few courts ever really take testimony concerning the adulterous affair. Like most other fault grounds for divorce, the marital misconduct is pleaded by the lawyer in the complaint or petition for divorce, but little attention is given to the pleadings thereafter. Indeed, it is rare that one person would allege adultery as part of a divorce, and the other person would deny it, followed by a trial to resolve the issue.

In many cases where adultery exists, lawyers advise their clients to choose a less controversial, easier, “no fault,” grounds for divorce. Adultery by itself does not entitle the victimized spouse to a greater share of the property or a higher amount of support. In some cases, however, a person committing adultery, may have wasted marital assets or dissipated money on his adulterous conduct. This situation could be quite obvious where the unfaithful spouse has moved out of the marital home and has begun cohabiting with his mistress. In such a case, the court will take interest in knowing how financial issues are addressed. If marital money is finding its way to the mistress, or otherwise being diverted away from the marriage, then the offending spouse may be required to pay spousal support, maintenance, or some other financial arrangement to restore the missing money to the marriage. As mentioned, however, there is generally no financial penalty to a spouse who simply has a sexual relationship in violation of his marital vows.

In some states, where a divorce is based on adultery, the party filing the divorce is required to serve a copy of the divorce papers on the mistress or paramour with whom the spouse is cheating. The mistress or paramour then has the right to file appropriate papers in the case, although this rarely occurs.

Sometimes, a husband will want to demonstrate that his wife has been committing adultery during the marriage as a device to defeat her claim for alimony, spousal support, or maintenance. In some jurisdictions, such proof may have an impact on the amount paid by the husband to the wife, or by the financially stronger spouse to the financially weaker one. In most places, however, marital misconduct of this sort will not defeat a claim for alimony, spousal support, or maintenance. Rather, it will be examined by the court to determine the extent to which the cheating spouse is being supported by her new boyfriend, and the extent to which her financial affairs and the new boyfriend’s financial affairs are intertwined.