Author: Joseph E. Cordell

Infidelity is obviously one of the most difficult breaches of trust to forgive in any relationship. While statistics are conflicting when it comes to how many divorces occur because of cheating (some list the number as high as 50 percent and others as low as 15 percent), the fact remains that adultery puts an extreme strain on marriages that can be very difficult to overcome.

When adultery does occur in a marriage, it innately creates a highly emotional and tension filled situation for both parties involved. The spouse who remained faithful will understandably feel anger, betrayal, grief and often the need to get some sort of revenge, while the spouse who cheated usually feels a pressing guilt and anger, either at themselves or misplacing the blame on their spouse for “causing” them to cheat.

Although courts generally do not put much weight into fault when it comes to divorce, this hostile emotional stew can make negotiating a divorce settlement much more difficult.

Women are closing the cheating gap

It has widely been accepted that men cheat more often than women largely due to the ability to separate emotion from sex. Meanwhile, women were seen to be less likely to stray because they required a more emotional connection, and therefore weren’t as susceptible to making an irrational decision based on mere opportunity.

However, new research has found that isn’t necessarily the case. Over the last 20 years, the number of cheating wives has increased by around 40 percent to a mark of 14.7 percent. Men have remained consistent at 21 percent over that time. While you must take any number that relies on self-reporting with a grain of salt, the fact that the number is increasing seems clear enough — and the reasoning makes a lot of sense.

The closing gap can be seen following a changing cultural and economic landscape. Now, women are much more financially independent than in the past, which means they are able to independently support the potential consequences of an affair. Additionally, a larger presence in the work force and advances in communication technology have created more opportunities for hookups.

Though men still have a higher chance of cheating in general, women are increasingly becoming the culprits of extramarital affairs.

Effect of infidelity on no-fault divorce

With the number of marriages ending due to infidelity somewhere between 15-50 percent, it creates many questions as to how this will affect the divorce proceedings. Unfortunately for all of the faithful who are splitting due to a cheating spouse, infidelity rarely has much of an impact on the divorce.

With the prominence of no-fault divorce, blame rarely has much of a bearing on any aspect of the dissolution. There will be no preferential treatment when it comes to the distribution of assets unless you can definitively prove that marital assets were spent on the paramour. Similarly, infidelity will have no influence on custody determinations so long as the affair was not paraded in front of the children.

Alimony has the chance to be affected, but that depends on your states laws and the discretion of your judge. A cheating spouse may lose their right to alimony if infidelity can be conclusively proven, even with a no-fault divorce.

Effect of infidelity on fault divorce

Some states still offer fault divorce, and adultery is often one of the grounds for this method. However, while seeking a fault divorce does come with potential benefits, it also comes with certain risks.

Through a fault-based divorce, one spouse essentially lays the blame for the deterioration of the marriage at the feet of the other. They must then back up this claim with hard evidence, which the “defendant” spouse will get a chance to disprove. If successful, the petitioner in a fault divorce can receive a larger portion of the marital property, a larger (or reduced) spousal support requirement and the ability to avoid the lengthy waiting periods of no-fault divorce.

Still, you must weigh whether or not the chance for a better settlement are worth risking the expense of extensive litigation. Most divorces are settled out of court to avoid the pricey process of additional court hearings and lawyer fees. Additionally, gathering hard evidence of your spouse’s infidelity can be costly. If you fail to prove your claim and your spouse is found innocent, the separation will be treated as a no-fault divorce and you will have wasted a lot of time and resources for nothing.

The level of trust breached by infidelity makes it very difficult to move past, meaning that any marriage where one of the spouses cheats risks divorce. It will be a highly emotional time, and while you probably feel that your spouse deserves nothing, do not expect the courts to feel the same.

As difficult as it will be, your best option is to put all those negative feelings aside and simply negotiate a settlement. You may feel that it’s unfair, but you aren’t going to get any more sympathy from dragging things out in court. Your best bet for moving past such a betrayal is to get things over with as quickly as possible, and move on with your life.

As the months and years pass after your divorce, you may find that certain aspects of your divorce decree no longer apply to your life. Because divorce decrees are legally binding, modifying them to fit your current situation is a process. It is important to know when to modify a divorce decree and how to make these changes to make the most of your time and resources. Cordell & Cordell can represent you through the modification process.

Appealing vs. Modifying a Divorce Decree

You can change a final decree in two ways, though appealing can be more difficult than modifying the decree. While both are effective, they are for two different reasons.

Appealing a Divorce Decree

When you appeal the decree, you are asking the appellate court to review the family court’s ruling. It is very difficult to have a divorce decree overturned, as the appellate court will favor the family court’s ruling unless the appellate court finds significant legal error in the lower court’s ruling.

Generally, it must be an error of law or an abuse of discretion by the lower court. For example, the court clearly and unfairly ruled in favor of your ex-spouse or ordered the bulk of parenting time with a spouse who is violent or has addiction issues. Another example is if new evidence comes to light regarding the finances of either party. The appellate process is also expensive.

Can You Modify a Divorce Decree?

You can ask for a modification of a divorce decree to change it. It can be less expensive and usually more successful. The family court can change certain issues, such as child support, time-sharing, and spousal support payments.

To modify a divorce decree, you must reopen your original divorce case and file a motion for modification. You will need to show how circumstances changed and why they warrant a change in the divorce decree.

Each state has its own modification process. In most states, you can mediate the issues. You meet with a third party who conducts the mediation. If you can come to an agreement, you may need to attend a short hearing so the court can modify the original divorce decree.

In New Hampshire, for example, you petition the court to change the final order. You must serve the other party with the new petition. Even if you were the respondent and are now the petitioner, you remain the respondent in the modification case.

In Virginia, the parties can ask for a modification by filing a petition with the court. Others may petition the court, including the court itself, probation officers, and the Department of Social Services. You must show a material change in circumstances for the court to allow the modification.

In California, you can create a new agreement and submit it to the court. If you and your ex-spouse can’t agree on the changes, you can petition the court to change the order.

Reasons for Divorce Decree Modification

Regardless of what state you are in, you must have one or more reasons to modify a divorce decree.

1) Substantial Change of Circumstances

If you have a significant change in circumstances, you can ask the court for a modification. In some cases, your ex-spouse may have a significant change in circumstances, such as getting remarried or getting a promotion and significant wage increase. You can also petition the court based on a change in your ex-spouse’s circumstances. Examples of significant changes include:

• Change in income
• Change in employment
• Retirement
• Unable to work because of a disability

2) Changes in Personal Life

Your personal life can change, which could trigger a reason to modify a divorce decree. Some examples include:

• You or your ex-spouse remarried.
• Your ex-spouse committed a crime.
• You or your ex-spouse have mental health issues that preclude you from working or caring for the minor children.
• Your ex-spouse changes their residence.

3) Changes in Living Situation

If your living situation changes, it may make it harder or easier to see your children. Moving closer to your ex-spouse makes it easier, but moving farther away can make it more difficult.

How To Modify Your Divorce Decree

While each state has its own process for divorce decree modification, it all boils down to changing the original court order. Thus, you must petition the court to change the order. Even if you come to an agreement on your own, you must ask the court to incorporate the new settlement agreement into a new court order, especially when dealing with issues such as custody arrangements, child support payments, parenting time, and spousal support payments.

In most cases, the steps are similar to these:

1. File a “Motion to Modify” or “Petition to Modify” your divorce decree.
2. Identify the original order you want to modify, whether it is the final judgment, a child support order, or a custody order.
3. Describe the significant or material change in circumstances.
4. State the changes you want to make.

If a child is involved, state that the modification will be in the best interests of the child. Once you file the motion or petition, the court will determine if the evidence you presented is enough to prove a significant change in circumstances and will either grant or deny your motion.

The modification process, though easier than the appeal process, can still be difficult, especially when asking for a downward modification in alimony or child support. A family law attorney can advise you about a post-divorce modification.

Why Work with Cordell & Cordell’s Divorce Lawyers

The divorce attorneys at the law firm of Cordell & Cordell have been helping men involved in family law disputes, including custody modifications and other modifications, since 1990. Our family law firm has an A+ rating from the Better Business Bureau and has earned accolades from clients and colleagues around the country.

Client Experience

“[My lawyer] was great! I believe I would have been better off today had I used your services from the onset. My post-judgment situation was unnerving, but you all stepped in and did what was needed.” — Edward S.

“All around, [my lawyer] did exceptionally well for me. He got everything I was fighting for, he communicated with me well, and it was just all around a great experience.” — Christopher K.

Fight For a Fair Agreement. Fight For Yourself.

Cordell & Cordell represents men in various family law issues. Contact our team today at 866-DADS-LAW or fill out our online contact form to schedule an initial consultation about modifying your divorce decree.

Disclaimer: This page serves as a resource and is not to be taken as legal advice.

Cordell & Cordell’s virtual town hall runs through a checklist of important items to take care of to help you prepare for divorce in 2022.

Cordell & Cordell Managing/Executive Partner, CEO Scott Trout hosts a panel of divorce attorneys from across the United States, including Christina Diaz, Jonathan Winn, Alix Ritter, and Cara Phillips. They discuss list making to stay organized through the division of assets; the importance of copying important documents and statements; important considerations regarding the division of property, income, and time with your children; divorce strategy; how to learn about divorce law; keeping your priorities straight through the process; and more.

Cordell & Cordell is continuing to host monthly town halls to help answer the most pressing issues men face during divorce. Be sure to register for the next session. A recording of the town hall will be emailed to all registrants so you can still watch if unable to attend live.

Cordell & Cordell’s virtual town hall covers what you need to know about divorce during the holiday season.

Cordell & Cordell Managing/Executive Partner, CEO Scott Trout hosts a panel of divorce attorneys from across the United States, including Asa Neff, Jessica America, Marilynn Dye, and Niecie Strand. The panel discusses dealing with child custody arrangements during the holidays, coping with separation during this time of year, offers tips for preparing for the holidays during divorce, and more

Cordell & Cordell is continuing to host monthly town halls to help answer the most pressing issues men face during divorce. Be sure to register for the next session. A recording of the town hall will be emailed to all registrants so you can still watch if unable to attend live.

Cordell & Cordell’s latest virtual town hall dives into the most important aspects of divorce for men ages 45 and older.

Cordell & Cordell Managing/Executive Partner, CEO Scott Trout hosts a panel of divorce attorneys from across the United States, including Jerrod Rayborn, Josiah Silverstein, Danielle Webb, and Alyson Ryan. They discuss how divorce and family law issues can impact men a little bit differently depending on what stage of life they are in. They review issues such as whether you will be required to pay maintenance, when child support payments are likely to end, whether you should continue making contributions to retirement accounts, the impact of marital misconduct, and more.

Cordell & Cordell is continuing to host monthly town halls to help answer the most pressing issues men face during divorce. Be sure to register for the next session. A recording of the town hall will be emailed to all registrants so you can still watch if unable to attend live.

During a divorce, relying on the assistance of your family law attorney is the right thing to do. Their guidance and focused legal experience can help you through this tumultuous time.

While emotionally and financially challenging, you can make the divorce experience a bit easier on yourself and your family by avoiding common pitfalls that damage cases and futures.

Cordell & Cordell’s attorneys understand how to navigate these challenges for their clients, which is why Executive/Managing Partner, CEO Scott Trout hosts a monthly Virtual Town Hall with a panel of attorneys from around the country, dedicated to educating men and fathers going through the divorce process.

This month, the Virtual Town Hall focused on five additional mistakes that men and fathers make while going through the divorce process.

1. Choosing the wrong lawyer

Your attorney is a necessary component of your future. They are there to get you through the divorce process and do what they can for your future, depending on the specific facts and circumstances of your case.

This is why choosing the wrong lawyer can be so detrimental.

Many in your life may attempt to recommend a particular attorney, who did well in a legal case for them, but they may not focus on family law. Some may look at reviews and find that a particular attorney who meets their needs has a negative review, making them pass on hiring that attorney and hiring someone less competent.

Whatever the situation may be, your choice of an attorney is an important factor in how the process goes. No case has a guaranteed outcome, so it is necessary to be vigilant when researching your lawyer.

“If you meet with an attorney who starts to make promises as to the outcome of the case, that’s a big red flag to turn around and run away,” Cordell & Cordell Virginia Senior Litigation Attorney Jacob Smith said.

2. Concealing information from your lawyer

When you meet with your attorney, you need to be upfront and honest about all of the facts of your case. They need your full transparency about all of your assets and everything that opposing counsel may use to discredit your character.

You do not want your attorney to be blindsided in court with a fact or a previously unidentified bank account mentioned by opposing counsel. Your case will suffer because you attempted to conceal pertinent information from your attorney.

“I always say at the first instance, you want to tell your attorney everything they need to know because our job as attorneys is to help you,” Cordell & Cordell New Hampshire Senior Litigation Attorney Jessica Ugarte said. “Just like at the doctor’s, a doctor can’t help you unless you tell them the symptoms. Your lawyer is not going to have a crystal ball and figure out that you have this million-dollar asset that you never told them about.”

By concealing information or assets, you are stifling the efforts of your attorney, in effectively doing their job and representing your case during your divorce.

3. Doing a sloppy job on financial records

In the same vein as concealment, you may do a poor job maintaining and recording financial information. It may be deliberate and part of efforts to conceal an asset, or it may be accidental and part of a larger recordkeeping problem.

Whatever the case may be, poor financial recordkeeping can set your case back and make your attorney’s job a lot harder in court.

“In some respects, some of the most important things you can do in court are being completely clear and deliberate when it comes to your financial records,” Cordell & Cordell Ohio Senior Litigation Attorney Robert Vizmeg said. “It comes down to two things when it comes to financial records: credibility and penalty.

“In my jurisdiction, one of the first documents you file with the court is an affidavit of income and expenses. That affidavit is as if under oath, and you want to be as clear, as concise, and as truthful as you can because these filings will have an impact on early orders and will speak to your credibility.”

If your financial records are poorly reported or are missing key assets, you may face a penalty from the family courts.

“For example, in the state of Ohio, the penalties can include double or triple the damages, based on the withholding of an asset that should have been filed in the record,” Mr. Vizmeg said.

4. Talking too much – especially to your wife

The outcome of your divorce case affects your future, and you do not want that case impeded by disclosing too much information to those in your life, especially to your soon-to-be ex-spouse.

Whether it is regarding a particular strategy that you and your attorney have discussed employing or a particular discovery made in the case, talking too much can be detrimental to the welfare of your settlement.

“I like to tell my clients that my office is like ‘Fight Club,’ said Cordell & Cordell California Senior Litigation Attorney Cassandra Lelek said. “First rule about ‘Fight Club’ is we don’t talk about ‘Fight Club.’ We don’t talk about what happens in this office.

“I understand people getting excited and going to friends and talking about their strategy. However, that can get back to your spouse. The best strategy is one that is secret.”

5. Being ill-prepared for testimony and interviews

During a divorce, you may find yourself settling in hearings or mediation, concluding the process with little to no turmoil. Conversely, you may find yourself in front of a judge needing to face the cross-examination of opposing counsel, putting pressure on you and your case.

In those circumstances, your attorney needs to take the necessary time to go through a mock trial situation, if they believe that you are going to have to testify in front of a judge.

“If you find yourself in a position that you are going to testify in front of a judge and you are going to be cross-examined by opposing counsel, you need to be prepared,” Ms. Ugarte said. “That is where cases are won and lost.

“I always tell clients to listen more than they talk during cross-examination. Listen to the words you’re being asked. Answer that question. If you don’t understand, that’s OK. Ask for clarification.”

Answering the questions asked truthfully and concisely are necessary aspects of testifying under cross-examination, and your attorney can prepare you beforehand by asking you tough questions and giving you the necessary guidance before you take the stand.

While pitfalls may arise during the divorce experience, you can trust that your attorney will help you along the way. Staying prepared and doing the necessary work beforehand will allow you to maintain a clear outlook of your case and your life after your divorce is finalized.