Infidelity and Divorce

The reason why a married couple is seeking a divorce matters in divorce proceedings. While technically matters such as infidelity do not affect whether or not you can get a divorce in a no fault divorce state, infidelity can affect other matters important to the divorce settlement.
Technically, all of the states in the United States have some form of no fault divorce. However, the procedures for obtaining a no fault divorce and the very definition of no fault divorce vary significantly among the states. In a true no fault divorce state, a spouse does not have to show any specific reason for his or her request to end the marriage. Instead, the spouse petitioning for divorce may ask the Court to end the marriage because the marriage has suffered an irretrievable breakdown, or the spouses have irreconcilable differences. 
The party seeking the no fault divorce does not need to prove that the other party violated his or her vows and any allegations of infidelity are irrelevant to the question of whether the couple may be legally divorced. However, the court may consider infidelity as it pertains to specific matters of the divorce settlement, such as:
·         Child Custody:  often the question of moral fitness to be a parent arises in divorce cases involving contested child custody. While discreet infidelity may not in and of itself influence child custody arrangements, a parent who is unfaithful and exposes his or her children to the infidelity or who neglects his or her children because of the infidelity may have a difficult time gaining custody of the children in a divorce proceeding absent the other parent’s consent.
·         Division of Marital Property: in equitable distribution states there is an assumption that marital property will be divided equally at the time of divorce. However, if one spouse spent money on gifts, trips, and other expenses related to his or her infidelity then the Court may find that the just and equitable division of the marital property involves providing more of the marital assets to the spouse who did not spend the couple’s money being unfaithful with another person. 
·         Alimony: while each state allows couples to obtain a no fault divorce, some of the no fault states have statutes that allow adultery to be considered in determining the alimony. They reconcile this position by reasoning that infidelity is irrelevant to whether the couple can get divorced but may be relevant in determining the specific elements of the divorce settlement such as alimony.
The impact of infidelity on these aspects of divorce settlements is highly dependent on the particular facts of the affair(s). Infidelity in and of itself may not affect child custody, the division of marital property, and the allocation of alimony but the particular way in which the adultery was conducted can have a significant effect on the outcome of a divorce. Further, some states have both “no fault” and “fault” divorces and the impact of adultery can be significant if it is still grounds for a “fault” divorce in those jurisdictions.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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