Infidelity in a Divorce | Cheating and Custody

Divorce in and of itself is hard. Infidelity makes it harder. Infidelity is when a married person engages in sexual activity with someone other than their spouse. Besides the emotional turmoil it brings, it can make the court process more complicated.

Infidelity in a divorce can have far-reaching affects on things from alimony to a parent's relationship with their child and a service member's career in the military. Some states even consider infidelity a crime.

How cheating affects divorce

If you file for a no-fault divorce (meaning neither spouse is officially blamed), cheating won't impact it much. However, if you divorce on the ground of infidelity, the at-fault spouse could get a less favorable ruling regarding asset division and alimony. Filing for fault-based divorce also makes the divorce process longer and more expensive.

In both no-fault and fault-based cases, you might get a larger share of assets if your spouse spent shared assets on their affair partner. Gifts, travel, clothing, meals — any amount debited from a shared account can count against your spouse. (You'll need receipts to support your case.) This is less likely to happen in states with equitable distribution, which is based on fairness and not fault.

If you settle, cheating can still come into play as it may make the unfaithful spouse more willing to agree to terms like paying alimony.

If you have a prenup, check to see if it has an infidelity clause. It will state exactly how infidelity will impact your divorce. For example, some spouses stipulate that the spouse who is unfaithful must make a lump sum payment to the other, similar to damages you'd win in court.

Is infidelity grounds for divorce?

Infidelity is grounds for divorce. As long as you're in a place that recognizes fault-based divorces, you can file for divorce on the grounds that your spouse was unfaithful to you.

However, you cannot use infidelity as your ground for divorce if:

• You yourself have cheated (even if your spouse also cheated).
• You waited several years after finding out to file for divorce.
• You encouraged the affair (e.g., agreed to an open relationship).
• You forgave your spouse after finding out about the infidelity.

Deciding whether to use infidelity as ground for divorce

Advantages of a fault-based divorce could include a better financial award, leverage in negotiations, no waiting period, and a sense of "winning."

Still, in many U.S. states, over 90% of divorces don't assign fault, says Henderson & Henderson Law Firm. They cite a ground like irreconcilable differences or incompatibility.

According to Henderson & Henderson, "No-fault divorces are favored for their simplicity, lower cost, and reduced conflict, as they avoid the public airing of marital issues."

Naming infidelity as your ground for divorce means you must prove it in court, and it takes time to gather proof. If your spouse fights the accusations, you'll also need more time for discovery and court appearances.

According to a study by Custody X Change, the median cost of a divorce with a lawyer is $18,000. You're looking at significantly higher costs if you involve infidelity.

Proving infidelity in family court

Evidence that can help you prove adultery includes:

• Photos
• Videos
• Witness testimony
• Receipts (e.g., flights, hotels, gifts)
• Emails
• Texts

Infidelity is often hard to prove in a divorce. Some spouses hire private investigators in the hopes of catching their spouse with their affair partner. Some affair partners are willing to testify in court, or, if they were also married, their spouse might have evidence of the affair.

An experienced attorney will know what will help your case.

Do you get alimony if you cheat?

Whether you can get alimony if you cheat depends on the state you live in. In Georgia, South Carolina and Virgina, a cheating spouse cannot get alimony unless the divorcing couple agrees to it. Virginia does allow judges to make exceptions if the cheating spouse can't financially support themselves without alimony, or their spouse is also at fault for the end of the marriage.

Elsewhere, a cheating spouse can get alimony. However, if you spent marital assets on your affair partner, the court could factor that in when deciding how much alimony you should receive.

How cheating affects custody

Cheating only affects custody if it hurts the children. All custody decisions must protect the child's best interests. Neither a mother or father will lose custody for cheating, unless there's proof it hurt the child.

You won't automatically get full custody because your husband or wife cheated. The custody arrangement will depend on what the court finds is best for the child.

Here are some times when cheating could affect custody:

• A parent introduces their affair partner to their child, causing the child distress.
• Parents argue about the affair in front of the child, exposing the child to conflict (often a form of emotional abuse).
• A parent allows an affair partner with a criminal record or a history of abuse around the child.
• A parent abandons their child to be with their affair partner.

A custody evaluation ordered by the court or requested by a parent could help identify how much the affair has affected the child.

A 2021 University of London study found that cheating has long-term impacts on children. Children of unfaithful parents are often left to carry their parents' emotional load, which can later lead to resentment. They also often have trouble trusting their own romantic partners in adulthood.

Adultery and the military: Uniform Code of Military Justice Article 134

Uniform Code of Military Justice Article 134 sets behavioral standards for members of the armed forces. Under this article, adultery is a form of misconduct. This applies to both married service members who cheat on their spouses, and to unmarried service members who have affairs with married persons.

To get a conviction, the government must find all the following true:

• There's proof of the adultery.
• One of the involved people is married.
• The act negates "good order and discipline in the armed forces" or harms the reputation of the armed forces.

When deciding the punishment for adultery, the government considers many factors including:

• The rank, marital status and position of those involved
• Whether it has affected the ability of the involved to carry out their duties
• Whether government time or resources were used in service of the affair

The service member could be dishonorably discharged from the military, lose their military pay and benefits, and even face one year of confinement.

Service members accused of adultery should hire a military defense lawyer for help.

Is cheating illegal?

Adultery is a crime in the U.S. territory of Puerto Rico and 16 states:

• Alabama
• Arizona
• Florida
• Georgia
• Illinois
• Kansas
• Maryland
• Michigan
• Mississippi
• North Carolina
• North Dakota
• Oklahoma
• Rhode Island
• South Carolina
• Virginia
• Wisconsin

Oklahoma, Michigan and Wisconsin consider adultery a felony. Wisconsin even threatens up to $10,000 in fines and up to 3.5 years in jail. However, it's rare for someone to actually face charges for adultery.

Going through the divorce process as a parent

Divorcing when your children are still minors means you'll need to prepare thoroughly — even if you don't cite infidelity as the ground for the divorce.

Documents you might file as evidence in a divorce involving custody include:

• A proposed parenting plan
• Proposed parenting time schedules
• A calendar of your child's activities
• A printout of messages exchanged with the other parent
• A log of your child's expenses
• A parenting journal

The Custody X Change online app lets you create all of these in one place. It makes sure you're ready to take on the divorce process step-by-step.