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The Effect (or Lack Thereof) of Infidelity on Divorce

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.

Frank Murphy

Edited By Frank Murphy

Chief Compliance Officer
Frank Murphy

Frank Murphy is the Chief Compliance Officer and an Executive Partner at Cordell & Cordell. His responsibilities include oversight of the Firm’s compliance with Legal and Ethical obligations as well as contributing to the day-to-day operations of the Firm as an Executive Partner.

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