I have committed adultery. Will my spouse get the lion's share of everything, including property and higher-than-usual child or

Your spouse's cheating may have a large effect on how child custody is decided, as well as possible affecting property division as well.

By Beverly A. Pekala
June 23, 2006
IL FAQ/Legal Issues

Whether you consider it good news or bad news, it's pure myth that the "bad guy" will have to pay (literally!) for playing around. While this may have been true years ago when the laws were quite different, those days are long gone. You have probably heard the phrase "no-fault divorce." Believe it or not, the law prohibits "punishing" the bad guy and "rewarding" the good guy, whether by changing the distribution of assets or debts, or by requiring that a certain amount of maintenance be paid simply based on "good" or "bad" behavior. However, there are several ways in which adultery can become an issue in your divorce case. Here are a few examples:

1. "My husband bought his girlfriend a $5,000 diamond tennis bracelet!"
It's not bad enough that your spouse is having an affair, but then you learn that money has been spent on lavish gifts and "wining and dining." Those dollars spent by your soon-to-be ex will definitely be an issue in your case. The legal word for these expenditures is "dissipation," which basically means a spouse has used marital money for a non-marital purpose. The diamond bracelet represents $5,000 worth of dissipation, which is brought back into the marital estate for purposes of division, along with whatever other monies were inappropriately spent. The trick, of course, is to have proof of the dissipation. If the scoundrel did buy the tennis bracelet for her, hope like heck that he didn't pay in cash on their trip to Bermuda, but, instead, used his charge card.

2. "I just found out that my wife's boyfriend has been in my house while I'm at work, and my children, who are only eight and nine years old, have seen them carrying on together in the bedroom!"
If your spouse is participating in sexual behavior while the children are present, this will certainly be a major issue in your case. The court may not be interested in what your spouse does in her private moments, but this presumes that her conduct does not have an impact on the children. Because the court is very much concerned about the best interests of the children, her indiscriminate behavior obviously is relevant. The minute that it becomes clear that her irresponsible behavior impacts negatively on the children, you can be sure that this conduct will be quite relevant when deciding issues of custody and visitation.

3. "When I learned that my spouse had several affairs during our marriage, I called my doctor to have a complete physical. My tests results show that I have a venereal disease, and I know it's his fault, since I have always been faithful."
If you believe that your spouse is responsible for transmitting a venereal disease to you, this can become an important issue in your divorce case. It is imperative that you speak with your attorney so that you can make an informed decision about whether you wish this very private information to become part of your case. In making this important decision, you will likely consider what, if any, impact the venereal disease has on your health, including your ability to continue participating in daily activities and carry on your current employment duties.

Beverly A. Pekala practices family law in Chicago. She is the author of Don't Settle for Less: A Woman's Guide to Getting a Fair Divorce and Custody Settlement and has been voted a Leading Illinois Attorney by a statewide survey of colleagues.

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June 23, 2006
Categories:  FAQs

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