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If an affair can be proven, will it affect the divorce?

When a husband and wife reach the point of seeking a divorce, they will probably have cause for such a permanent separation in mind. One of the most common reasons to split up in the U.S. is adultery. In fact, this is often listed as among the top two to three grounds for divorce (behind “irreconcilable differences”).

An interesting question in these cases is this: if there is an affair on one side of the marriage and this can be sufficiently proven, will it have a meaningful impact on the divorce? As with many legal questions, there is no straightforward answer. It requires that we consider a variety of factors.

States Have Their Own Rules and Historical Precedents on the Issue of Marital Adultery

The first thing to keep in mind is that the question of adultery and its impact on divorce varies from one state to the next. In some states, it has minimal impact. In other ones, the effects are sometimes significant.

Looking at historical precedent, adultery used to be the primary cause of divorces in the United States. When a woman had an extramarital affair, society (and by extension the law) looked at this as a more serious offence (and therefore punished it more severely) than they did for the same acts engaged in by a man. Even in a number of countries today, this is still the case (such as with Saudi Arabia and Iran). In these far more traditional societies, today a wife who commits adultery could be violently executed still.

In the U.S., some states also criminalize adultery to this day as well. The difference here is that the offense is hardly ever prosecuted anymore. Beyond this, it can still have an impact on the final outcome of the divorce. Where the distribution of assets is concerned, it often no longer has a serious influence on the decision of the courts and the judge in some states.

A notable exception would be if the offending spouse has applied marital assets in support of the affair and extramarital relationship. Consider the classic example of a husband taking out a loan against marital assets so that he can provide for his mistress. The courts would factor this into the final equation for asset distribution in the divorce settlement.

How Does Adultery Affect Custody Outcomes?

Where the primary or joint custody of the children is concerned, adultery would be less likely to play a determining factor than in the past. The exception is if the offending spouse has exposed the children to the inappropriate relationship or any uncomfortable situations during the context of the affair. Such a scenario can have an impact on at least the primary custody results.

At Fault States (and At Fault Divorces) Are Different Though

There are a number of states that still use the old at fault factor in divorce hearings. This is also a factor in states that have both no fault and at fault dual divorce systems going. In these states, a provable affair will influence the division of the property and the amount (or even possibility of) support.

In fact, in such states, adulterous affairs can and have greatly decreased the offending parties’ obligations to support the other spouse with alimony. It can even eliminate the requirement altogether in certain scenarios. In these cases, it often does not matter how seriously the adulterous spouse needs the support. The courts may even terminate alimony that is already in place if the still-married spouse (or even ex-spouse) is living with another individual.

Matters become more serious if the unfaithful spouse acquires a sexually transmitted disease. This is more the case if he or she inadvertently passes it on to the marital partner. It can even lead to a personal injury claim known as interspousal tort.

In these at fault states (or at fault divorces), the most significant and problem causing impact that adultery has on divorce pertains to the financial settlement. Statistics shows that divorce cases will settle by an overwhelming margin of 90 percent in the majority of jurisdictions. This is because the cheating partner often feels his or her guilt deeply once discovered or having confessed. The offended spouse is generally angry and looking for revenge as well. It is enough of a potent combination of emotions for the two parties to quickly settle and not drag out the issues in a costly and lengthy court battle.

It is important to make the critical distinction between at fault and no fault divorces (and states) in answering the question of will uncovered and proven affairs impact the proceedings and outcome of the divorce. Courts are generally not in the business of assigning blame for the divorce if they do not have to do so. Today they often feel that the excuses for a divorce are irrelevant. This is partly a result of how extremely common divorce has become in American society, with around half of all marriages now sadly ending in divorce.

The problem arises with those tricky at fault (and especially the contested) divorce cases. Cohabitation on the part of either marital partner is particularly influential for the final outcomes of spouse (and sometimes even child) support. Those spouses who choose to remarry without reaching negotiated financial arrangements with the former husband or wife can even lose their rights to make future financial claims against the other party.