What Is the Impact of Infidelity on Divorce?

Can your partner’s infidelity be held against them if you get a divorce? Here’s what you need to know about how infidelity could affect your own split.

impact of infidelity on divorce: husband catches wife talking to her lover on the phone

Infidelity is never an easy thing. For many people, it's grounds for divorce. After all, most people promise to be faithful to their partners in their wedding vows. Breaking that promise is a clear sign that your spouse doesn't respect you enough to be true to their word. It's challenging to move past that kind of violation of trust. You're probably feeling hurt and betrayed. You may also wonder whether your partner's unfaithfulness can be held against them if you get a divorce. The answer to that question varies depending on the contracts involved in your marriage. Here's what you need to know about how infidelity can impact a divorce and what to expect in your own split.

Impact of Infidelity on Divorce

Divorce law has come a long way over the last 50 years. Historically, it was necessary to have an acceptable reason for getting a divorce. These reasons included serious abuse, impotence, and infidelity. If you could not prove one of these issues, then courts would routinely deny people the divorces they needed. In some ways, these laws were good for victims during for-cause divorces (splits that had a legal reason other than "unreconcilable differences"). The spouse who was wronged often received preferential treatment. However, these for-cause laws caused more problems than they solved by limiting who could get divorced and making the process deeply antagonistic. That's why most states have removed for-cause divorces from their laws entirely. Instead, states like California only permit "no-fault" divorces. In these splits, the reason why a couple is separating is irrelevant unless one of the two is in danger. As such, infidelity's impact on your divorce is likely much smaller than it may have been decades ago. Still, infidelity can affect your split legally, financially, and emotionally. Here's how.

Legal Impacts of Infidelity

Legally, unfaithfulness is unlikely to impact your divorce at all. Unless you live in a state that still permits for-cause divorces, your spouse's unfaithfulness isn't considered by the judge during your split. There's one exception. If you have kids and your spouse's infidelity demonstrates that they're an unfit parent, it may be considered during custody proceedings. For instance, if your spouse consistently cheated on you with someone dangerous for your children to spend time with, you may be able to argue that they should not receive physical custody of the kids. Otherwise, their behavior will not restrict or improve your legal ability to get divorced.

Financial Impacts of Infidelity

A spouse's cheating may have an impact on the financial aspects of your divorce, but not the way it used to. In for-cause divorces, one spouse's infidelity often leads to the other spouse receiving a greater share of the marital assets. This was both compensations for the faithful spouse's suffering and a punishment for the unfaithful partner. However, many states have stripped this from their laws in favor of no-fault divorces. If you don't have any other contracts binding your marriage, your spouse's unfaithfulness won't affect the financial outcome of your divorce. There are two exceptions to this. First, if you have a pre-or post-nuptial agreement, you may be protected by an infidelity clause. These clauses vary, but they generally impose penalties on unfaithful partners if their infidelity is the reason for a split. Second, if you choose to have your divorce mediated or arbitrated, you don't have to follow your state's laws on asset division as closely. You and your spouse can negotiate how the assets are divided. If your partner feels remorseful for their actions, you'll be better able to negotiate for the assets you want.

Emotional Impacts of Infidelity

The emotional impact of infidelity is usually the most obvious. If your spouse cheated on you, it's only natural to have strong feelings about their actions. Those emotions can heavily shape how you approach the rest of your split. Some of the most common ways your spouse's unfaithfulness may affect you emotionally during your split include:
  • Difficulty attempting mediation. Mediation relies on you and your spouse being able to remain professional despite your split. If you're feeling betrayed and angry, you may find it challenging to collaborate with your partner that way. You may prefer to work with an arbitrator, private judge, or the public court system instead to have a greater buffer between you.
  • Desire to "punish" your partner. Anger can make you feel vindictive. It's understandable if you wish your partner to understand how badly they made you feel. However, that doesn't mean that you should use your divorce as a way to punish them for their actions. Getting divorced is a legal proceeding, not a tool to hurt your ex. If you find yourself doing things just to make your spouse's life harder, consider getting counseling to process your emotions more healthily.
  • Doubts about whether divorce is the right choice. On the other hand, you may sometimes doubt whether getting a divorce is the right path after your partner's unfaithfulness. If you still love them, you might want to work through things instead. You can pursue a separation instead of a divorce if you're genuinely unsure. However, a divorce may be the better option if your spouse is regularly unfaithful. They're unlikely to change their behavior, and you deserve a partner that you can trust.

Prenuptial Agreements and Infidelity

The best way to ensure that infidelity will be considered during a split is to get a prenuptial agreement before you get married. You can also get a postnuptial agreement, a similar marital contract, signed after you marry. Both post-and prenuptial agreements allow you to set your own terms for your marriage. For instance, infidelity clauses can let you determine the consequences of cheating in advance. These clauses allow you to set terms like:
  • The unfaithful partner cedes the right to certain assets like homes, cars, or retirement accounts
  • The unfaithful partner surrenders the right to receive alimony
  • The unfaithful partner must pay alimony equal to a certain percentage of their income
These terms can protect both of you and even make your marriage stronger. They ensure that if one of you cheats down the road, the other person won't be forced to give up a significant asset because of the cheating partner's mistakes. They also give you peace of mind. Having a penalty for cheating in place can be just enough of a deterrent to keep you both faithful for life.

Moving on After Infidelity

You're in good company if you choose to get divorced after your spouse cheats. Your spouse's infidelity may or may not impact aspects of your split, but it's more than enough reason to end your marriage. You need legal assistance when divorcing after infidelity, whether you have a prenuptial agreement or just want help getting your divorce finalized as quickly as possible. The right attorney will help you navigate your legal contracts and divorce.

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