Marital infidelity is common and much has been written on the subject. Recently, the Wall Street Journal published an article entitled “The Signs Before An Affair”, Wall Street Journal, January 27, 2015, page D1. While not necessarily scientific, the “signs” include:
- Certain ages being more prone to cheating;
- History of past infidelity;
- Dissatisfaction with the current relationship;
- Exposure to potential partners at work;
- Thrill seeking or narcissistic personal traits.
Moreover, statistics suggest that sometime during their marriages, 21% of men and 15% of women are involved at some time in an extramarital affair. See National Opinion Research Center’s General Social Survey. Other statistics are even higher.
Naturally, the question arises as to what, if any, effect an affair has on a soon-to-be-filed or pending divorce case? In many cases, the infidelity is what triggers the filing of a case. There are differences of opinion as to whether the affair is the cause of the break-up or a symptom of an already broken marriage or some combination. One thing that is certain, however, is that on an emotional level, the infidelity increases anxiety, anger, fear, and resentment, often to levels that make rational decision making difficult if not impossible.
While emotionally infidelity has a huge impact on people’s lives, legally, only a few consequences flow:
1. The act of the extramarital affair may create grounds for divorce, i.e. adultery. However, since marital misconduct is no longer a relevant consideration in Illinois with respect to division of property, awards of child support and alimony, or custody determinations, this impact is no longer meaningful;
2. The money spent on the affair may give rise to a claim for dissipation, i.e. the expenditure of marital funds on a non-marital purpose during a time when the marriage is going through an irretrievable breakdown. While this certainly has a more meaningful impact, seeking recovery for the dollars spent on a non-marital purpose, ie: flowers, hotel rooms, jewelry or even vacations, often is not cost effective. While these dollars should not necessarily be ignored, in many cases, the time, effort and fees spent to recover these kinds of expenditures may outweigh the recovery itself.
Regardless of the legal ramifications, in most situations of infidelity, the notion that he or she can “get away with it” is unacceptable to the cheater’s spouse. Starting or continuing an extramarital affair when a divorce case is pending may likely significantly raise the level of emotion, push parties to more extreme positions, and frequently create more work for paralegals, forensic accountants, and lawyers, ultimately causing the divorce to be more expensive and not necessarily providing a cost/benefit to the client. Having said that, people often let their personal emotions drive the course of a divorce case. Therefore, when a party to a divorce wants to push for retribution or punishment, it is up to the individual attorney to educate their client on the legal consequences of the infidelity and help their client determine the best course of action for their overall case, and not merely as a reaction to the infidelity.
When meeting with clients who are in the process of experiencing the after-shock of learning about their spouses infidelity, I often advise them that time is a great healer. I suggest that they slow down and not rush to make a game plan, but to take their time identifying their own long term goals so that the short term disappointments are not the driving force and they can focus on the best end result.