Infidelity and Divorce: Does Cheating Matter?

For many couples infidelity is a milepost on the road to divorce because it shatters the trust essential to marriage. Some 60 percent of men and 40 percent of women become unfaithful at some point during their married lives.

Infidelity is grounds for divorce in states that require a special reason, but in no-fault states, infidelity is not a factor in the divorce because there is no need to prove that one spouse did something wrong to warrant the divorce. Today, in most jurisdictions, marital misconduct means little or nothing when the court divides the marital estate, and courts are more concerned with economic misconduct than marital misconduct.

Proving infidelity means proving adultery, and having to do this makes for very difficult and nasty divorces. Even when one spouse is unfaithful, many lawyers advise victim spouses to use another ground when there is no advantage to gain by pursuing adultery. Generally, marital infidelity is irrelevant in the distribution of the marital estate unless infidelity directly affects the equitable distribution of the property. The court can consider dissipation of assets when the unfaithful spouse spent marital funds on an adulterous relationship. For example, if a spouse spends money on trips or gifts for his or her new significant other, dissipation can have an impact on the court’s equitable distribution of assets between the spouses. The victim spouse may receive more than the cheating spouse in order to make up for the misused funds.

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