The recent hacking of Ashley Madison brought into public light a societal taboo that typically stays behind the closed doors of cheap motels and in the records of many a divorce—extramarital affairs.
While it is no secret that cheating happens, the numbers that came out of the potential data breach on the now infamous adultery site (Ashley Madison claimed more than 37 million users could have been compromised) clearly demonstrates that the prevalence of married individuals seeking affairs is likely far greater than many would imagine.
And even though the breach thus far has essentially boiled down to an opportunity for spammers to spread malware, the initial hype over what it could potentially mean for millions of married adulterers to be singled out is a good opportunity to explain the significance of what cheating can do to a marriage and the financial consequences—both direct and indirect—when many of these marriages come to an end.
In my experience as a divorce attorney, adultery is a factor in a substantial majority of cases, and in many states, marital misconduct such as adultery can be considered with respect to a number of factors in the settlement.
A spouse that is conclusively found to be guilty of committing an extramarital affair may be required to pay a portion or all of the opposing party’s attorney fees. In some states, such as South Carolina, adultery can be an absolute bar to receiving alimony even if you would be entitled to support otherwise. Infidelity can also impact the equitable distribution of assets depending on your state’s law.
While these are a few examples of how an affair can explicitly impact a divorce settlement, the rise of no-fault divorce has led to an often diminished direct impact of infidelity on divorce proceedings. An increasing number of states have enacted laws that attempt to remove blame from the equation and create a less contentious process, which often makes it easier to negotiate a settlement.
This does not mean, however, that infidelity is completely removed from affecting the outcome in even the strictest of no-fault divorce states.
The largest impact of having an affair come to light in a divorce often has little to do with statutes and case law, but in its ability to influence the mind of the court. The nature of family court gives far more discretion to the judge than arguably any other area of law, meaning there is often very little concrete criteria for a judge to employ when making a ruling.
Aside from something like child support, which typically has a fairly straightforward formula, a judge is free to interpret the majority of his or her rulings how they see fit. In equitable distribution states for example, there are generally a set of loose guidelines for a judge to use when it comes to determining the division of assets, but it essentially comes down to what the judge thinks is an “equitable” settlement.
This is also true for maintenance awards and attorney fees, so when evidence of an affair arises during a divorce, there is a good chance it will play a role in the judge’s decisions when it comes to these factors that have potentially substantial financial ramifications.