Discovering that your spouse has cheated can make you feel like your world is falling down around you. You may feel sad, angry, depressed, hurt, vengeful, or all of the above.
While you’re going through the wide array of emotions that come with being betrayed by someone you loved, trusted, and thought you would spend the rest of your life with, it can be difficult to focus on the legal side of infidelity.
What happens if you (or your spouse) has chosen to end your marriage as a result of infidelity? Needless to say, there will be emotional consequences whether you want to work it out or not – but there can also be some serious legal implications. It’s important to understand what these implications are as well as what your options are should you find yourself in this situation.
Here are the legal implications and your options if your spouse has cheated.
1. If your spouse has cheated, what claims could you have against them?
In many states, adultery plays a role in determining alimony or spousal support. A spouse’s infidelity can bar their claim for alimony that they may have otherwise been entitled to. It may also help your claim for alimony if it is the other spouse who has cheated. If you live in a state which considers marital misconduct such as adultery a factor in determining alimony, you need to ensure that you have the proof you need to support your claim. In some states – like South Carolina, for example – an allegation of adultery may allow you to request a divorce in less than the set waiting period (this varies from state to state, although one year is standard in most states).
Other states don’t recognize adultery as a claim or consideration, so depending on the state, infidelity may not have an impact on your separation or divorce case. Laws vary from state to state, so it is important to know what the laws in your state say about cheating and your rights.
2. What evidence do you need to have in order to prove that your spouse has cheated?
The signs of infidelity may all be there: your spouse may come home smelling like perfume or you might find a receipt for a dinner for two at the most expensive restaurant in town when you know you weren’t the one being wined and dined that night! But is that enough to prove that your spouse is cheating?
Generally, the definition of cheating may encompass a spectrum of situations. Infidelity can include anything from an emotional affair or inappropriate text messages to dating or having sex with someone outside the marriage. In many states, you will have to prove that there was more than just a wandering eye or a relationship that teeters on the other side of friendship. When it comes down to it, you have to prove that your spouse engaged in sexual acts with a third party.
Now, that doesn’t necessarily mean that you have to catch your spouse and the third party (also known as the “paramour”) in the act. Infidelity can be proven by showing that your spouse had the opportunity and the inclination to have sexual contact with someone else. This could be pictures of your spouse and a third party entering a hotel room and emerging a few hours later. It could be two people holding hands in public and kissing, and then disappearing into the third party’s home after they had enough time to engage in a sexual act.
After consulting with your attorney, you may decide to employ a private investigator, who is usually someone trained or experienced in the laws and requirements for proof of an affair.
Although emails and phone records can be subpoenaed by the court, if you are considering separation and divorce and suspect that your spouse has cheated – or is still cheating – on you, it is essential to seek legal advice before you act. At a time when emotions are likely running high, addressing the situation head-on with your soon-to-be ex without the proper evidence could be more disastrous than productive in the long run.
3. How might it affect custody of your kids if your spouse has cheated?
Generally, a person is free to date following a separation. However, if your spouse chooses to continue to date the person they cheated with, that can certainly make for a more emotionally charged situation. It can also make negotiating with a level head difficult — if not impossible — for you. You may not want your children to be around the person your spouse was unfaithful with.
While this feeling may be common, and even understandable, the way you feel may or may not matter when your custody case comes in front of a judge whose job is to rule in the best interest of the child. Some judges might find that it is not in the child’s best interest to be exposed to that person so soon, while some judges might find that it is okay as long as the adults involved are being appropriate.
It may take a little time to sort through your conflicting feelings, but for parents who are committed to working together to put their kids’ interests first, it’s possible to come to an agreement on when and how dating partners will be brought into children’s lives.
This can be done through the creation of a parenting agreement – sometimes called a “parenting plan.” A parenting agreement can address all issues related to custody; it can set out the mutually applicable rules and guidelines that apply to make each parent feel relatively comfortable with their kids being introduced to their co-parent’s new romantic partner.
If things are very contentious and two parents simply cannot agree on anything, a parenting coordinator can help them make co-parenting decisions – including when the children can be introduced to a dating partner. A parenting coordinator is typically an attorney or therapist who acts as a neutral third party to help two parents in a high-conflict custody case resolve certain issues that they can’t reach an agreement on by themselves.
4. Can you sue your spouse’s paramour for destroying your marriage?
Depending on the state you live in, there may be claims you can file against your spouse’s paramour (the person with whom your spouse has cheated). One such claim is “alienation of affection.” You typically hear about this claim when there is a headline in the news about a big monetary award given by a jury in a high-profile case. Alienation of affection – sometimes known as the “heart balm” tort – is a type of claim available for someone who believes they have been deserted or left by their spouse as the result of a third party.
An alienation of affection claim is only available in a handful of states, including North Carolina, Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah. In order to pursue alienation of affection and meet the legal requirements of the claim, you must prove that genuine love and affection existed between you and your spouse prior to your separation or divorce and that a third party was a controlling and proximate cause of your spouse’s alienation of affection from you. It doesn’t have to be the only reason for your spouse leaving or being unfaithful, but it has to be a controlling factor.
If you’re in one of the few states that have this claim available, the issues involving proof of the affair are important to consider. There may be other causes of action available as well – such as negligent or intentional infliction of emotional distress. These claims can be very nuanced. so it is important to speak to an experienced divorce lawyer to find out whether the claim is available to you and if you can meet the legal burden of proof for any such claims.
If Your Spouse has Cheated, Know Your Rights Before You Act
So before (or maybe after) you take Carrie Underwood’s advice and key the side of your spouse’s car or take a baseball bat to both headlights, it’s important to take a step back and consider the legal implications of your spouse’s cheating and the claims and issues that you may be facing. While it may seem like the end of the world, remember that the world keeps on spinning, and this too shall pass.
Finding the answers to the above four questions are the first steps to take if your spouse has been unfaithful. His or her infidelity means that you’ll have to be prepared to face the next steps: do you want to try couples counseling in an attempt to save your marriage, or you do you want a separation or divorce? Give yourself every advantage you can when moving forward towards building a life that may – or may not – include your spouse.
Robin Lalley is an attorney and certified Parenting Coordinator in the Family Law Practice Group at Sodoma Law York, where she leads the office in Rock Hill, South Carolina. Licensed in both NC and SC, she has experience handling divorce, child custody, alimony, and other family law related cases. www.sodomalawyork.com