When a relationship ends, it is difficult, to say the least. When the end of the relationship is caused by one of the spouses having an extramarital affair, it is even more devastating. Clients want to know how such an affair will affect their divorce case. A full and complete answer depends on whether the divorce is taking place in a state with consideration of fault, and then what the specific fault laws say.
The majority of the states are no fault, which leads clients to believe the affair is of no relevance in their jurisdictions. However, it can be very relevant depending on the specifics. For example, if there are parental responsibility disputes, the timing of introducing the children to the paramour can be scrutinized by custody experts and courts. The time dedicated to the new relationship versus the children can be a key focus, when looking at a parent's ability to put the child's needs ahead of his or her own. If the client is the one who had the affair, and the relationship has continued, he or she should be cautioned not to expose the children too early to this new person, and to be aware of what the children need during the difficult transition due to their parents' divorce. If the client is not the party who had the affair, the attorney will best serve the client with a referral to a therapist to assist with the grieving and strong emotions that are justifiably present. The client needs to be reminded that an affair, alone, without direct impact on the children, will usually not be considered when allocating parental responsibilities in a divorce case.
In no-fault states, there can still be financial implications from an extra-marital affair. For example, if significant marital funds were expended on the affair, marital waste can be found. The end result is that the guilty spouse can be found to have already received that dollar amount of the marital estate, and the innocent spouse is awarded a like-amount from the remaining estate first. Discovery will probably be needed to trace the amount of marital funds wasted, and if the ending amount is insignificant, it will not usually be considered by a court. Further, the cost of such discovery should be justified by the anticipated resulting waste. The client needs to understand the costs, and make an informed decision as to whether to proceed in such a fashion.
Brenda L. Storey is a prominent and well-respected Colorado custody and divorce lawyer, specializing in family law for 19 years. Ms. Storey runs an annual Family Law Basic Skills seminar that teaches new practitioners the substantive fundamentals. Visit her website for more information.