Does Cheating Affect Your Divorce Settlement?
- How does an affair impact your divorce?
- What damage can it cause?
- What to do if you've been having an affair
People get divorced for all sorts of reasons. Infidelity is one of them. Data suggest that around 20% of married people have cheated at least once. Those who do could face consequences when it’s time to draw up a divorce settlement.
In some states, you have the option of proving some kind of fault when you file for divorce. And in many cases, cheating fits the bill. Infidelity could potentially impact the amount you must pay your ex in support. And, if your ex can prove that your affair or related behavior harmed the children in some way, it could also impact your custody arrangement.
How does an affair impact your divorce?
In every state, you have the option of filing for a no-fault divorce. This means you’re not required to prove any kind of fault to file for divorce. But some states also allow for fault divorce in which you must cite a cause for the split, such as infidelity. Your partner could allege that your infidelity and the harm it caused should affect your marital divorce settlement in some way.
What damage can infidelity cause?
As part of your divorce, you craft a marital settlement agreement (MSA) that spells out details such as spousal support and child cusotdy. An MSA outlines the split of your assets, debts, childcare arrangements, and more. Although you cannot be punished through an MSA for the moral “sin” of an affair, it could still potentially impact your agreement.
What do we mean? In some states, laws allow judges to consider misconduct when awarding spousal support payments. For example, if your ex can prove that you had an affair and that you used marital funds to pay for it, you could be required to pay more money in alimony or spousal support to your ex-spouse. As another example, if your ex can prove that you left your young kids unattended to engage in your affair, that behavior could impact your future custody arrangement.
If both people were unfaithful
What if your spouse was also unfaithful to you? You could fight back by proving that your spouse had an affair as well. If you’re both at fault, the judge may be willing to take this into consideration when determining what’s fair in your settlement agreement.
What should you do if you’re having an affair?
What if you’re heading into a divorce, you’re cheating, and your partner doesn’t know? It’s a tricky scenario, and you must be careful.
Therapists often encourage their clients to disclose affairs fully, openly, and honestly. The idea is that infidelity is best managed by clear communication and plenty of apologies.
But therapy sessions aren’t protected forms of communication. Items you disclose in counseling could be used against you during divorce proceedings. If your ex believes notes from your therapy sessions could benefit them in a divorce trial, they could subpoena those records. And if you talk about infidelity, that could cost you during your settlement.
On the other hand, if you’re heading for divorce and don’t want to reunite with your partner, disclosing your infidelity to people helping you with the split (like a divorce lawyer) could keep you protected. These people could advise you on what to say and do to protect your assets.
If you're facing divorce and unsure how an affair might affect your divorce process and outcome, consider scheduling a free 15-minute phone call with Hello Divorce. Our knowledgeable team can advise you on what your next steps might be and how to get professional help at a reasonable flat fee rate.
ReferencesDemographics of Infidelity in America. Institute for Family Studies.
Do Couples Really Need Full Disclosure After Infidelity? (May 2021). Psychology Today.