Alimony, Infidelity and Divorce: What’s the Price of Adultery Today?

Everything has a price – especially in affairs of the heart. Sometimes you pay in dollars. Sometimes you pay in emotional turmoil. Often you pay in both. For better or for worse, alimony, infidelity and divorce are often hopelessly intertwined. When they happen to be wrapped around your life, you likely can’t help but wonder: What’s the price of adultery?

The Emotional Price of Adultery

It goes without saying that having an affair can destroy your marriage. While plenty of couples rebound from infidelity, just as many (probably more) don’t. A spouse’s affair is often the death knell for a marriage. Even in those marriages that survive an affair, a spouse’s cheating destroys the trust that formed the foundation for the relationship. While that trust can be rebuilt, most couples don’t have the stomach or the stamina to try to do so.  That's especially true if their marriage was flagging long before the affair took place. But, adultery does more than just devastate your marriage, and your heart. When adultery leads to divorce, it wreaks havoc on your finances too. Fortunately or unfortunately -- depending upon which side of the affair you’re on -- marital infidelity doesn’t have nearly as big of an impact on the financial side of divorce as it once did.

The Legal Price of Adultery

Historically, adultery is one of the oldest grounds for divorce. In many countries, adultery was punishable by death. Adultery still is punishable by death in several countries in the Middle East and Africa. It is also still a crime in many states in the United States. But, adultery is rarely, if ever, prosecuted any more. In addition to being a crime, adultery may also form the basis for civil lawsuits in many states. Again, however, such cases are rarely pursued today. When they are pursued, they are even more rarely successful. In today’s world, the place where adultery has its biggest effect is in divorce. Yet, even that effect is waning. When divorce was based on “fault,” proving your spouse was unfaithful was often the key to getting a divorce. If both spouses were faithful, the law didn’t allow you to get divorced, no matter how miserable you were. (That is, of course, unless you could prove that your spouse had done something else that warranted divorce – like subjecting you to mental or physical cruelty.) But now that “irreconcilable differences” is recognized as a ground for divorce, you no longer have to “catch your spouse in the act” in order to end your marriage. Even still, depending upon which state you live in, adultery can still play a significant role in divorce.

The Effect of Adultery on Divorce

With the advent of no-fault divorce, seeking a divorce based upon adultery became less and less common. While scorned spouses still may get emotional satisfaction from filing divorce papers that publicly proclaim that their spouse cheated on them, there is little legal reason to pursue that kind of claim. Infidelity generally has no impact on custody, child support, or parenting time at all. The only time a spouse’s affair will affect  the "kid issues" in divorce is when the affair itself directly affected the kids. That rarely happens. Unless your spouse dragged your two year old into a brothel, your spouse’s infidelity probably didn't directly harm your kids. Adultery also rarely affects the division of property in divorce. In almost all states, the fact that one spouse cheated does not normally mean that the other spouse gets a bigger piece of the marital pie. There is, however, one exception to this rule: dissipation.

Dissipation

Dissipation is a legal concept that means that one spouse spent marital money for a non-marital purpose. Translated, that means that one spouse spent money on his/her affair partner. While going after your spouse for all the money s/he spent on someone else sounds totally fair, in practice, proving dissipation can be tedious and expensive. Even when your state (like Illinois) provides that, once you allege dissipation, your spouse must prove that s/he DIDN’T dissipate marital assets, dissipation is still a tricky legal issue.  It often requires you to spend days scouring credit card bills and sifting through boxes of old receipts. Sometimes, your efforts pay off. Sometimes you find the “smoking gun.” You find the receipt that proves your spouse took a $20,000 trip to some exotic place with his/her paramour. More often than not you find a few scattered restaurant bills and maybe a receipt for some flowers. When that’s all you’ve got, the price you pay in attorney’s and accountant’s fees is often way more than the dissipation you found. Of course, if your spouse has been living a double life for years, the dissipation in your divorce can be significant. The same thing is true if your spouse started living with his/her “sweetie” long ago. In those kinds of cases, proving dissipation can be well worth the effort.

Alimony, Infidelity and Divorce

The one aspect of divorce in which your spouse’s infidelity can still have a sizeable impact is in the area of spousal support. Even still, the impact that it has is still way less than what it had in the past. In a little less than half of the states, your spouse’s misconduct (i.e. adultery) has no impact on alimony whatsoever. It doesn’t affect whether your spouse has to pay alimony, how much s/he has to pay, or how long s/he has to pay it. In a very small number of states, your spouse’s adultery has a huge impact on alimony. For example, in North Carolina, if the court finds that the paying spouse committed adultery, the court shall order that spouse to pay alimony to the dependent spouse. If the dependent spouse committed adultery, then s/he cannot receive alimony. Most states, however, consider adultery only as one factor in the decision of whether to award alimony. The laws in several of those states specifically state that alimony cannot be used to punish an adulterous spouse. The adultery is simply one of many factors a court may – or may not – decide to consider when deciding whether to award alimony.

The Bottom Line When It Comes to Infidelity and Divorce

Few things in life hurt more than discovering that your spouse has been cheating on you. When infidelity destroys your marriage, it’s only natural that you want to use your spouse’s bad acts to punish your spouse. That seems only fair. Yet, the law has evolved to a point where, in most states, your spouse’s infidelity will have little or no impact on the financial aspects of your divorce. That may or may not seem fair to you. Either way, the law is what it is. For better or for worse, your spouse’s infidelity may have ruined your marriage. But it’s not likely to make a huge difference in your divorce.