No-fault divorce has become the norm across most states, which in basic terms means that the reason the parties are divorcing is not a factor considered by the court when dividing assets and debts or determining other areas of the settlement.
As such, the most common grounds used in a divorce petition are “irreconcilable differences” or an “irretrievable breakdown in the marriage.”
It is important to know that there does not have to be a consensus on whether the marriage is irretrievably broken — as long as one party alleges that it is broken, the divorce can be granted.
So, does this mean that adultery will never be relevant in a divorce proceeding if you are filing under no-fault grounds?
Not necessarily. There are a couple of incidents where it may play a factor.
Dissipation of assets
Property division will depend on the laws of your state, but it is common for courts to presume an equal split of marital assets — even in equitable distribution states.
However, there are several ways that you can rebut that presumption, one being dissipation of assets.
Also known as marital waste, a party to a divorce may attempt to prove that one spouse in the marriage abused or intentionally squandered marital assets to deprive the other party of their fair share.
If it can be shown that a spouse used marital assets on another person during the marriage, that may be considered dissipation.
For example, spending money on travel or gifts for the “other” man or woman may be considered dissipation and warrant a deviation from the presumptive 50/50 division.
Be aware, however, that proving dissipation has a high burden of proof on the accuser, and it may not be worth pursuing due to the cost of securing sufficient evidence.
Custody and parenting time
The court will not correlate one’s fitness to be a parent with their faithfulness as a spouse; however, the court may consider the parent’s judgment with respect to when and if they introduce their children to the other person.
If a parent moves in with a new girlfriend or boyfriend, this may have an effect on the judge’s decision as to what living arrangements will be in the best interests of the children.
Then again, a judge may decide that conduct was a wrong done only to the other spouse – not the children.
Generally, it is not wise to introduce kids to a new girlfriend or boyfriend soon after the separation.
The court would also be concerned about the parent’s judgment if their new significant other poses a danger to the children.
Exposing the children to someone who is abusing alcohol, drugs or who has a history of child abuse would most certainly impact a custody determination.
While anyone who has experienced a cheating spouse may justifiably feel that courts should hand down punishment for wrecking the marriage, infidelity does not usually have much bearing on the outcome of a divorce.
Barring rare circumstances, such as wasting marital funds or the adultery negatively affecting the children, there will likely be very little real impact on no-fault divorce proceedings.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”