Infidelity is a common cause of divorce throughout North America. However, the effect that an affair might have on the outcome of your divorce case will vary depending on your jurisdiction. Different laws set out different standards for how infidelity impacts a divorce, and the following is some information about adultery and some examples of how your divorce outcome might be swayed if your spouse was unfaithful.
Adultery as Grounds for Divorce
For a long time, a spouse had to state “traditional” grounds for divorce that were based on marital misconduct, such as adultery. While all jurisdictions in North America now allow no-fault divorce based on the irretrievable breakdown of a marriage, some jurisdictions still allow spouses to claim fault-based grounds for divorce. In many cases, fault-based grounds can eliminate the need to be separated for a period of time before obtaining a divorce.
If you allege infidelity as grounds for a divorce, your spouse will have the opportunity to contest your allegations. If your spouse does contest, you will need to sufficiently prove the adultery occurred to obtain your divorce. This does not mean that you need to catch your spouse in the actual adulterous act, though you do need to present credible evidence that infers they were engaged in extramarital sexual conduct. Such evidence may include:
- Statements from friends, family members, or other witnesses who knew about the affair
- Credit card charges for gifts, hotel rooms, romantic meals, trips, or other expenses related to the affair
- Emails or text messages
- Not coming home often or another departure from normal routines without explanation
- Seeing your spouse with another person
If you are unable to present evidence to support your claims of infidelity, the court can deny your petition for a divorce based on those grounds. You might need to file for no-fault divorce, which might require a period of separation before the case can get underway.
Adultery in a No-Fault Divorce
Many people file for no-fault divorce because it seems simpler or because their jurisdiction does not allow fault-based grounds. In this situation, infidelity may or may not play a role in the divorce process. While you can end your marriage without the court considering infidelity, your spouse’s conduct could still come into play when deciding certain issues in your divorce.
In some cases, your spouse might have wasted marital assets on an affair. If you have records showing your spouse racked up credit card debt or otherwise spent money on gifts, meals, vacations, or other expenses related to their infidelity, you can claim your spouse wrongfully wasted assets that were rightfully half yours. In this type of situation, the court can decide to award you a larger property award to make up for the funds your spouse wasted for extramarital purposes.
Spousal Support Awards
Whether infidelity affects spousal support (or alimony) awards will depend on the law and policies in your jurisdiction. The laws can vary significantly, including the following:
- Some jurisdictions prohibit judges from considering infidelity when it comes to spousal support, as the focus should be on the financial need of the recipient spouse
- Some jurisdictions prevent a spouse from receiving alimony if they were unfaithful
- Some jurisdictions entitle a spouse to a higher spousal support award if their spouse was unfaithful
It truly depends on where the divorce is occurring, and a knowledgeable divorce lawyer in your jurisdiction can advise you how infidelity might affect your alimony award.
Some spouses might think their children should not be around a parent who sets an immoral example by having affairs. However, a spouse’s infidelity does not make them automatically unfit to parent under the eyes of the law. Instead, the court will consider what is in the best interests of the child when determining custody arrangements. Some factors the court might consider include:
- Is the adulterous spouse engaged in affairs with numerous people at the same time?
- Does your spouse expose your child to inappropriate situations as a result of his affairs?
- Is the adulterous behavior accompanied by substance abuse, being gone for long hours, or other behavior that puts the child at risk of harm or neglect?
If the court believes that your spouse’s parenting abilities are impacted by the circumstances accompanying the infidelity, it might impact the custody determination.
Resolving Your Divorce Case
Even if you are rightfully angry and hurt by your spouse’s infidelity, this should not be the driving force leading to a certain outcome of your divorce. Family courts encourage divorcing spouses to focus on resolution instead of blame and fault, as this often makes it easier to compromise and reach out-of-court agreements. In some cases, raising the issue of infidelity can improve your divorce outcome while, in others, it might simply distract from the important issues and not impact the outcome at all.
If you are filing for divorce because your husband was unfaithful, it is important to examine all of your options and strategies with an experienced divorce lawyer. This way, you can take the best approach to ensure the best possible outcome of your case.
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