One of the most common causes of divorce is infidelity. Although an unfaithful spouse oftentimes is the motivation for the other partner to file for divorce, the fact that infidelity exists in the marriage impacts a divorce action in only some very select areas.
Beginning in California in 1970 and crossing the United States, all states but New York enacted a form of a no-fault divorce law. Most states modeled their no-fault divorce laws after Uniform Marriage and Divorce Act created by the National Conference of Commissioners of Uniform State Laws in conjunction with the American Bar Association Section of Family Law.
With the enactment of no-fault divorce laws, a person seeking a divorce no longer needed to present evidence concerning the "fault" of the other spouse. For example, a petitioner did not need to allege and prove the other spouse committed infidelity during the marriage.
Under these no-fault statutes, a divorce petitioner need only demonstrate that the couple is incompatible and that the objectives of marriage no longer can be satisfied. (Indeed, if the petitioner contends that the couple is incompatible the respondent alleges that they remain compatible, most judges will consider this as obvious evidence of incompatibility. The couple cannot even agree on whether or not they are compatible in the first instance.)
With the advent of no-fault divorce laws the necessity for demonstrating infidelity (or some other fault-based reason for termination of the marriage) no longer is necessary. Thus, from a strictly legal standpoint, a demonstration of infidelity is not relevant to the actual termination of a marriage in 49 of the 50 states in the U.S. Inasmuch as New York has not adopted a no-fault law, infidelity remains one of the grounds upon which a divorce can be sought in that state.
If you and your spouse entered into a prenuptial agreement prior to marriage, infidelity can be a major issue when it comes to dealing with the assets of the marriage. Typically, a prenuptial agreement includes a clause dealing with infidelity. For example, such an agreement can contain a provision that severely limits the assets or property that a "cheating spouse" can obtain from the other partner in the event of demonstrable infidelity.
With this in mind, if the intent of the prenuptial agreement was to protect your assets, income and property, if you suspect that your spouse has been unfaithful, evidence of that infidelity is crucial in order to further restrict what you will be obliged to give over to your spouse pursuant to the terms of that agreement and applicable divorce law in your state.
In some states, in some very limited situations, infidelity can be a factor in determining the amount of maintenance the non-offending spouse pays to the partner who was unfaithful. The purpose of maintenance is to ensure that the spouse theoretically entitled to such support is able to live the lifestyle to which she (or he in a growing number of cases) is accustomed for a specified period of time following the divorce.
A judge has some discretion and flexibility in the determination and awarding of maintenance. For example, if the spouse seeking maintenance has engage in a course of infidelity that was sustained and prolonged, a judge can adjust downward the amount of money to be paid to that spouse for maintenance. The legal rationale is that the conduct of the spouse, deliberate and offensive to the goals of the marital contract, should not be awarded with anything but the most minimal maintenance award permitted by law.
If maintenance is a point of contention in a case, and if allegations of infidelity are made, the parties to a divorce action need to be prepared to respond accordingly. The person from whom maintenance is sought must demonstrate that the infidelity was insidious. On the other hand, the partner seeking maintenance must argue that any alleged infidelity was minimal and far from being a primary cause of the divorce.
Child Custody and Parenting Time
In a majority of divorce cases, the infidelity of one parent will not play a significant (if any) role in determining which parent receives primary custody of any child or children. However, if it can be demonstrated that the infidelity of one of the spouses impacted the welfare, well-being or day-to-day life of a child in a negative manner, this conduct does become an issue. Ultimately, in determining which parent will have primary custody of a child, the court focuses on what is in the best interests of the child. In making this determination, the court naturally focuses on the conduct that a parent has displayed and undertaken in the past, during the course of the marriage.
While being unfaithful to a spouse does not mean that such an individual is a poor parent. However, if the infidelity caused the spouse to be neglectful on some level to a child, it is an argument in favor of the other parent being granted primary custody.
Similarly, infidelity can impact the extent of parenting time the parent who does not have residential custody enjoys with a child. (Parenting time is the term commonly used in this day and age for what was known as visitation. The concept is that no parent should be a visitor in the life of a child.) As with custody issues, if the course of infidelity negatively impacted the children, the extent of and type of parenting time that spouse will be permitted will be taken into consideration by the court.
- National Conference of Commissioners of Uniform State Laws
- American Bar Association, Section of Family Law
- After Infidelity, Do You Want to Make Up?, The Divorce Guide, 2009
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