If my spouse has been cheating, will that help me in the divorce?

One common question we receive at the law firm is “Can a Cheating Spouse Help My Divorce?” In the past, an affair used to have a significant impact on your divorce. If you could show that your ex was having an affair, you’d have a better chance of getting the divorce terms you want, like a larger share of the marital assets or even sole custody of your children. In addition, adultery could result in both criminal and civil charges. Things are now, however, a little different. In today’s world, here’s what you need to know about how an affair affects your divorce.

Fault Isn’t Necessary.

Many years ago, you had to show that your spouse had committed some bad act, such as domestic abuse or, yes, having an affair, in order to get a divorce. However, because “irreconcilable differences” are now considered valid grounds for divorce, you don’t have to worry about proving your spouse did something wrong. If you’re unhappy in your marriage, that’s enough to justify a divorce. To end the marriage, you don’t have to prove your spouse’s infidelity.

The Effect of Adultery on Your Divorce

In New Hampshire, adultery is one of the fault grounds that can be alleged. If you are able to prove fault, including adultery, the Judge can consider your spouse’s fault in ruling on the divorce. This includes, for example, awarding the innocent spouse a greater portion of the marital assets, a greater amount of alimony (or less alimony to be paid), or even a more favorable parenting plan. However, there are a couple of catches that make adultery not nearly important in a divorce as many people assume.

Did the Adultery Cause the Breakdown of the Marriage?

First, it is not just enough to prove that your spouse cheated, you must prove that the adultery caused the breakdown of the marriage. Often the other side will respond that the marriage had already broken down when the affair occurred. The argument is usually that that irreconcilable differences caused the breakdown of the marriage, and the adultery came after.

Or, another argument is that the adultery occurred first, sometimes years prior to the divorce, but that the innocent spouse decided to give it another chance. If the innocent spouse tries to work it out, but after trying can’t get past the infidelity and opts for a divorce, the cheating spouse can argue that even though there was originally adultery, it was something else that led to the final breakdown of the marriage.

How Much Difference Will the Adultery Make?

The second point is that, even if it is proven that the adultery caused the divorce, most Judges do not consider it nearly as important a factor as the innocent spouse wishes. A Judge, for example, may divide assets 60-40 instead of 50-50, but not the 90-10 that the innocent spouse lobbies for. Or, a Judge may look at the the  direct financial impact that the cheating had on the marital estate. For example, if husband paid $100,000 to put his mistress in a luxury condo for a year, a Judge may reduce the husband’s share of the marital estate by a similar amount.These numbers are just for illustration. The starting point for division of assets is a 50% division but the Judge can consider many factors in deciding to vary from the 50%. Adultery is just one of them.

Therefore, adultery no longer has nearly as significant impact on the outcome of the divorce as many assume. While some spouses may derive personal satisfaction from filing a divorce decree stating that their spouse has had an affair, it could have little to  no bearing on issues such as alimony, property division, or child custody. So, if you’re the scorned party, don’t expect the divorce court to punish your cheating ex; and if you’re the one who had an extramarital affair, don’t panic about getting the short end of the stick during divorce proceedings because of it. 

Adultery Can Impact the Parenting Plan

The innocent spouse also be able to get a majority or full custody of the children if you she shows the cheating spouse was an absentee or neglectful parent because he was too busy pursuing his new love interest. She may also be able to prove that the children became aware of the cheating and it caused the emotional trauma. Or, god forbid, there may be evidence that the new fling represents a danger to the children. Judges are usually not impressed if one spouse exposes a new partner to the children while still married. All of these concerns could factors in the parenting plan.

Cheating May Provide Leverage in Divorce Negotiation

Though the court may not do as much  as you would like to punish your husband for cheating, if you negotiate a settlement outside of court, you might be able to use this as leverage. If your husband feels terrible about cheating or wants to divorce so he can marry his mistress, he may be more willing to compromise during your negotiations or mediation. This is totally dependent on the circumstances of each couple. You can play the victim all you want, but if your husband isn’t regretful, it won’t help you much.

Harm to Your Children

There is one exception to the general rule that an affair has no bearing on child custody issues, and that is when the parent’s affair directly impacts the children. Remember that this does not refer to how your divorce affects your children; while the affair may have led to the divorce, and the divorce does affect your children, this is considered indirect harm.

If your spouse took your child or children to meet their partner at a hotel, that would be an example of direct harm. However, situations like these, especially if they occur frequently, may justify child custody arrangements that are overwhelmingly in your favor. Otherwise, the affair is unlikely to have an impact on the child custody agreement.

The Wording in a Prenuptial Agreement

If you have a prenuptial agreement with specific clauses that punish cheaters, you have one last, best chance to gain the upper hand as a result of your husband’s cheating. Some prenups will include a clause stating that a cheating spouse is entitled to less in a settlement or nothing if the cheating can be proven.

This clause is usually included in a prenup agreement to protect a wealthy spouse, especially if the other spouse does not have a lot of assets, to begin with.  Therefore, if your prenup contains a clause like this, use it to your advantage!

Do you need help with a divorce? Contact our Concord, New Hampshire divorce attorneys. We can help you navigate the challenges of divorce and lead to the most favorable outcome possible.

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