Today adultery rarely has an impact on the distribution of marital assets – except in cases of dissipation, that is, where one spouse uses marital assets to support the extra-marital relationship (for example, the straying husband who supports his mistress from assets that jointly belong to him and his estranged spouse). In some jurisdictions, the judge enjoys the latitude not only to correct the dissipation but also to consider it in the division of the marital pie.
In some states there is still fault-based divorce that – when proven – can impact support or property division. Even where no-fault divorce exists, adultery can seriously reduce or eliminate paying alimony to the unfaithful spouse regardless of need. In addition, alimony already in place is often terminated when a spouse or ex-spouse lives with another person.
Prior to the advent of no-fault divorce in the 1970s, all states considered fault in dividing marital property. By the end of the 1970s, almost all jurisdiction offered some form of no-fault, but not all the states have eliminated consideration of fault in dividing marital property.
According to the American Law Institute’s Principles of the Law of Family Dissolution, states take one of five approaches to this problem. Twenty states disallow any consideration of fault in dividing property. Five do not permit consideration of fault in dividing property, but may in awarding alimony. Three generally reject consideration of fault, but may permit it in cases of extreme misconduct, such as attempted murder. Seven do not consider fault for property distribution but give courts wide discretion to consider it for alimony purposes. Finally, fifteen states permit fault to affect both property distribution and alimony awards.
Adopting a no-fault divorce system does not necessarily mean a no-fault marital property system. In non-community property states such as New York, divorce courts are charged with the task of equitably distributing a couple’s marital property. Property acquired before marriage, or during the marriage by virtue of inheritance or gift, is generally considered separate property – and each spouse retains control of his or her separate property.
Marital property, on the other hand, must be equitably divided between divorcing spouses based on factors enumerated in the state’s divorce code or established by courts in prior cases. The question is whether one of those factors should be marital misconduct.
Essentially the same question arises when a court considers potential awards of alimony: Should a misbehaving spouse be made to pay more – or get less – alimony because of misconduct?
Every state permits consideration of fault when the misconduct has economic consequences for the marriage. First, it may be considered when the misconduct has limited the amount of property available.
Second, fault may come into play when the misconduct has affected the relative economic need of the parties.
However, the jurisdictions lack a consensus about whether, in that event, the marital misconduct should be relevant to property division when the fault causes no tangible economic consequences.
One reason for these divergent approaches may be differing theories about marriage. In states that treat marriage as a partnership somewhat akin to a business partnership, the goal is to split the proceeds fairly between the partners when it ends. Under that approach, non-economic fault is irrelevant. Other states have not gone as far in implementing the partnership theory of marriage. For them, it is not inconsistent to consider fault in allocating marital property.
Other factors may influence the disposition of marital wealth. When a faithless spouse contracts a sexually transmitted disease and infects his or her partner, the victim spouse can file a personal injury action called an interspousal tort for damages. Also, so long as a straying spouse has not carried on the relationship in front of the children or exposed them to inappropriate people or situations during the course of the affair, adultery is also unlikely to affect a custody determination.
More than 90 percent of all divorce actions achieve a settlement without going to court, and the most likely and most problematic influence adultery has on a divorce is in settlement negotiation. In this, the faithless spouse often feels guilty or sheepish in the aftermath of discovery or confession and the wronged spouse typically feels angry and retributive. The emotional stance of each party coming into the negotiation can drastically affect the terms of the settlement.