Infidelity and Divorce

st. louis divorce attorney infidelity

Many marriages end over one spouse having an affair. Infidelity has that power because it represents such a fundamental breach of trust between spouses at the most intimate level. And yet that perception of breaking the marital vows has changed over the last 30 years as the stigma associated with adultery has dissipated in line with the increase in divorce. It also has evolved as the law stops seeing a wife as dependent upon a husband. And yet despite all that progress and a sexual revolution, anyone in a relationship, and especially a marriage, will acknowledge the hurt that cheating causes.

But does this have an impact on the divorce?

In the years before no fault divorce, adultery would often be the principal reason cited for the end of a marriage. Today, though we no longer have to prove fault, our statutes do allow courts to take infidelity into consideration in two ways – when making a distribution of marital property and when making an award of maintenance.

First, the mere fact that one spouse had an affair in and of itself will not give the hurt spouse a “leg up” in the divorce. Each case must be considered on its own facts, and the courts today begin with the belief that affairs happen and marriages end, but courts should not be part of the process of handing out financial penalties for infidelity. In part, this relates to a trend associated with abolishing torts that allowed a cuckolded spouse to attempt to recover money damages from the cheating spouse and the paramour.

Second, in certain circumstances, the degree of marital misconduct associated with infidelity can rise to the level of an unequal division of property or a higher amount of maintenance. Where the marriage lasted of significant duration and the non-offending spouse had given more than a fair share to the marriage, either financially or in other terms, a court will pay more attention to the affair. It will see if the cheating spouse had multiple affairs and in particular utilized marital funds to have the affairs without the knowledge of the other spouse. So, for example, if the cheating spouse maintained an affair for years with a person who lived out of town and used marital funds for travel and gifts, that misuse of marital funds would provide a stronger case for an unequal division of property and/or a higher award of maintenance.

Third, infidelity does not immediately affect custody. A spouse who cheats can still be a good parent, and Missouri law encourages both parents having a meaningful relationship with the children. However, if a cheating spouse somehow involved a child (perhaps the child knew of the affair and the parent used undue influence to keep that child from telling the other parent), that behavior could result in a different custodial award. Also, if a spouse spent too much time traveling away from the family not for work but to have an affair, that opting out of parenting could also count against that parent with regard to custody.

If you have questions about infidelity and divorce, contact us – we can help.