New York, NY- Infidelity used to be a taboo, so much so that many states have laws on the books which made it a prosecutable crime. However, these days it is commonplace enough that people are no longer shocked when one or both spouses cheat. Does an extra-marital affair impact the final divorce settlement a spouse receives? There is not a simple yes or no answer as state laws vary.
The majority of states are no-fault divorce, where a spouse is allowed to file for divorce without stating the split is due to one spouses wrong-doing. The filer simply has to list one of the reasons recognized by the state, such as “irreconcilable differences,” “incompatibility,” or a “breakdown in the marital relationship.” Though “no-fault” is the easiest way to obtain a divorce, the estranged couple will have to go through a trial separation period that can range from 6 months to a year depending on each state’s requirements.
The majority of states offer no-fault divorces while some states have an option to file for either no-fault or fault divorce. Livestrong.com has a comprehensive list of the types of divorce offered in each state and the separation requirements.
In no-fault divorce states, infidelity rarely has an impact on how the division of assets and alimony is calculated. A final divorce settlement largely depends on formulas, and in no fault divorces courts rarely determine a settlement based on the events that transpired during the marriage.
Though the courts may not consider events which occurred during the marriage, cheating can have a big impact outside court in negotiations where 95 percent of divorce cases are settled.
The factors which can impact a settlement in no-fault divorces are pre-nuptials, if one spouse spent community assets on their lover and if one spouse had poor conduct or was abusive.
Child custody agreements are also typically unaffected unless the cheating spouse carried on the affair in front the children or exposed them to inappropriate situations or people.
Pre-nuptials can contain many provisions and it has become increasingly common for couples to add provisions which call for a smaller or no settlement in a spouse is guilty of infidelity. Some spouses agree to pay more in alimony if they are guilty of cheating. And because it can be costly to challenge a pre-nuptial, most parties chose to honor the original agreement.
A spouse can get a larger settlement if they discover their spouse sent a great deal of money on their lover. For example, if a husband spent money renting a love nest or on gifts, his estranged wife is able to get additional money on top of their alimony for those expenditures.
Poor conduct, out of bounds with common decency, or abuse on the part of the cheating spouse can give the other leverage to maximize their settlement. For instance if a wealthy man or woman flaunts their affair in their spouses’ face, they may end up paying a settlement on the higher end of the scale. Also, if the cheating spouse is found to be ignoring their children or shirking their family obligations, alimony and child support can be increased based on the extent of their neglect.
When a marriage has broken down because of infidelity, the parties have to be reasonable and not let their emotions get in the way. If they are angry about cheating, a mediator or divorce attorney will offer reasonable advice and guide them through the process so they don’t jeopardize the final settlement.