Discovering that a spouse has been unfaithful can be devastating. Depending on the seriousness of the adulterous relationship, the betrayed spouse must decide whether to forgive and stay in the marriage or to terminate the marriage with a divorce. Laws pertaining to adultery and divorce vary from one state to another. Even when adultery is the primary reason for the divorce, it is less important in settlement issues.
Court or Settlement
People embarking on a divorce can attempt to work out a settlement on their own or with the aid of attorneys. Another option is litigation and going to court; in this case, a judge makes the decisions. However, the court must still approve a negotiated settlement.
Cause for Divorce
Courts in general are less concerned with who-did-what than with economic issues. Some form of no-fault divorces are an option in every state in the United States. With no-fault divorce laws, the betrayed party is not required to prove that the straying partner is guilty. However, even where proof of adultery is not a factor, infidelity can be considered among divorce settlement issues including division of property, child custody and alimony.
In states that require equitable distribution of marital property, the property should be divided equally. However, if the adulterous affair involved the use of marital assets, those misspent funds can be considered in working out a divorce settlement. Money that the adulterous spouse withdrew from a joint marital account to set up an apartment for his girlfriend or to buy expensive gifts, for example, may have to be reimbursed to the other party in reaching a settlement. The court may thus reward the faithful spouse by allocating more than a simple 50-50 split of the assets.
In some no-fault states, adultery may be a factor in deciding how much, if any, alimony or spousal support a spouse will receive. Even if adultery is not grounds for divorce, it may affect an alimony award. Laws vary according to the state with jurisdiction over the divorce. In most cases, a husband will not be allowed to pay less spousal support or child support because his wife had an affair.
Adultery is not usually a factor in the award of child custody. Even an adulterous spouse can be awarded custody if the court believes that parent is a satisfactory guardian for the child. However, a parent who has been neglectful because of the affair or who allows his children to be exposed to the extramarital relationship may be considered a questionable candidate for custody.