The Effect of Infidelity on Divorce

 Posted on January 07,2015 in Family Law

Time and time again, divorce lawyers are asked what, if anything, is the effect of infidelity on a divorce.  If my spouse is cheating, will I be compensated in the divorce?  If my husband is cheating, will he be punished in the divorce?  If my wife is having an affair, will I win custody?  Or, from the point of the view of the person in the relationship, if I am sleeping with someone else or in love with someone else, am I in trouble? Should I be afraid to ask for a divorce if I am the cheater?

The short answer to all of these concerns is that Illinois is a no fault divorce state.  That means the affair itself is not relevant.  For example, the maintenance statute indicates that maintenance is determined "without regard to marital misconduct."  Certainly there are minimal exceptions to this rule. Cohabitation is grounds for barring maintenance.  Further, if you are being supported by a paramour, that decreases your need for support.  But the affair, in itself, is not relevant.

The same is true for division of assets.  The Illinois statute on property distribution states in relevant part that a court "shall divide the marital property without regard to marital misconduct..."  Again, marital misconduct is excluded from a Court's determination of how to divide assets of a marriage.  If your husband or wife is sleeping with the neighbor, they are still entitled to the same portion of assets as they would receive if they were not cheating.

The main time that infidelity has an effect on asset distribution is where dissipation has occurred.  That means if your spouse has spent money on their mistress or paramour, and you file or allege the appropriate notice of your intent to claim dissipation in the divorce, then you may be reimbursed for the monies spent toward the purpose not related to your marriage.  The funds spent on that expensive trip for two may be credited back to the marital estate and divided accordingly.  Dissipation also has a statute of limitations, therefore, you should consult with a lawyer about when it can occur and how long ago.

The issue of custody is different from the other components of a divorce.  Custody disputes are rarely black and white, usually gray.  Character and misconduct can play a role in custody determinations, however.  Yet, provided the person in the relationship outside of the marriage (the "cheater") has not exposed the children of the marriage to their boyfriend or girlfriend, then the infidelity may not play as large a role in a custody battle as the "innocent" party may hope.  However, in custody determinations, marital misconduct is a factor a Court can consider in making its determination.  Whether or not it is a large factor depends on the specific circumstances of your case.  You will have to consult a lawyer about the specific facts of your custody case if you are concerned about the effects of infidelity on your divorce, as every case is unique.

If you would like more information regarding divorce issues surrounding an infidelity in your marriage, speak with the experienced Lincolnwood divorce lawyers at Weiss-Kunz & Oliver, LLC