My Spouse Cheated On Me – Will the Judge Care? (Part I)

By October 16, 2013Divorce

On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Wednesday October 16, 2013

Frequently divorce attorneys have clients who feel wounded by their spouses because of marital infidelity. When a spouse has an extramarital affair, and it ultimately comes to light, the loyal spouse feels a deep sense of betrayal and a complete loss of trust, wondering how many more betrayals of the marriage, not just in terms of a sexual affair, took place. The easy and rather logical leap is for the loyal spouse to assume that if a cheating spouse has one secret, he or she could have more – hidden bank accounts, shady business deals, or worse.

Infidelity often leads to the end of a marriage. Given the obvious pain to the loyal spouse and the children, can a family court penalize the cheating spouse in any way?

Before Missouri adopted its current “no fault” divorce statute, Missouri required parties seeking a divorce to prove “fault” – some bad act that destroyed the martial bond and would justify a divorce. As you might expect, infidelity qualified as one of those bad acts. The older statutes would specifically allow a court to punish the bad actor in terms of the distribution of property or in the amount of spousal support. Further, Missouri used to have a tort – a civil action – known as alienation of affections, which would allow a loyal spouse to sue the mistress for damages for breaking up a marriage. However, Missouri – like nearly every other state – has since abandoned that cause of action.

Since the beginning of the no fault era, Missouri allows people to seek a divorce without proving a bad act. But that does not mean that bad acts go unpunished.

With regard to the distribution of marital assets, courts are directed to make an equitable distribution, which means starting from an equal sharing of the assets. However, if a party proves marital misconduct – such as an extramarital affair – that included using marital assets to further that affair (paying for a hotel room, a trip or a gift) the court would have a basis for making an unequal distribution of property. Simply proving the existence of the affair will not suffice; the loyal spouse must establish real and significant harm caused by the affair to justify an unequal distribution, usually squandering marital funds or causing the loyal spouse such distress he or she needed medical attention.

In Missouri, a court may punish a cheating spouse in terms of the amount of maintenance paid to the loyal spouse. While principally maintenance is used to help the spouse who earns significantly less to meet his or her reasonable needs, including the lifestyle during the marriage, the maintenance statute (452.335) specifically states a court may order maintenance based on the conduct of the parties. Again, in order to justify payment, the loyal spouse must prove a high degree of misconduct.

Finally, a court may punish a cheating spouse through an award of attorney’s fees – i.e., the court may hold the cheating spouse responsible for paying some or even all of the fees and costs the loyal spouse incurred in litigating the divorce action.

A caveat – while the statutes authorize a cheating penalty, courts vary in their willingness to apply it. Most judges will require something more than a brief affair to depart from the equality rule. If you have been the victim of a cheating spouse, you must document the degree of the cheating and the impact it had on the family, the family finances, and your own emotional and physical well-being.

If you have questions about cheating spouses and divorce, contact our St. Louis family law attorneys – we can help.