In equal numbers, prospective clients come to me either excited about a perceived ace-in-the-hole because of the other spouse’s adultery, or worried about his or her own adultery. Neither attitude is warranted. The Courts couldn’t care less about anyone’s adultery in and of itself, or the immorality of it. Half the divorces they see involve adultery. In fact, there’s a very real danger that pressing this issue will backfire, making the accuser appear obsessive and jealous.
That said, the adultery can be relevant in some ways, such as:
• If the affair consumed a lot of a spouse’s time, the extent to which the spouse was off with his or her paramour at the expense of parenting is very relevant to custody determinations.
• If the paramour is — or would be — a bad influence on the children, either because of a criminal background, mental illness, chemical or alcohol dependency, or because the children hate him/her, etc, that also is very relevant to custody determinations.
• If a spouse has spent a lot of marital earnings or assets on the affair — or incurred credit card debt to pursue the affair — this can be relevant to the property settlement in the divorce.
The key is to be extremely careful how one approaches this issue.
As a tactical matter, I’ve noticed that if a spouse is having an affair, that spouse can often — but not always — be very concerned about two things: 1) avoiding exposure; and 2) speeding up the divorce in order to freely pursue the new relationship. Knowing this can therefore give you some good leverage in settlement negotiations.
by Andrew C. Wiener, Attorney