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How Infidelity Impacts a Divorce


Published on January 19th, 2022

If your marriage is ending due to an extramarital affair, you may be wondering how that could impact the rights and obligations of either you or your spouse. In previous generations, an affair could have a much larger impact on the outcome of a divorce for both parties. The adulterer stood to receive less favorable terms and even risked losing custody of a child – now known as parental rights – not to mention being the subject of potential lawsuits.

Today, adultery doesn’t carry quite the same stigma. While cheating can certainly bring emotional harm into a home that may have lasting effects on the family, an affair generally has little or no impact on the process of terminating a marriage. Therefore, as tempting as it can be, it’s not always helpful to tally your ex’s negative behaviors in the hopes of currying favor with a judge. If infidelity has been an issue in your marriage, your lawyer will help you understand what the potential impacts are and how they might apply to your unique set of circumstances.

Illinois Is a No-Fault Divorce State

While infidelity remains high on the list of possible causes of divorce, an affair generally has little impact on the proceedings themselves. One reason is that, due to a law that took effect in 2016, Illinois is a no-fault divorce state. This designation means that someone seeking a divorce is no longer required to prove marital misconduct to get a divorce. As a result, misconduct such as adultery is unlikely to have an impact on decisions regarding property division, spousal maintenance and parenting agreements.

In today’s world, having irreconcilable differences is considered valid grounds for a divorce. In other words, general dissatisfaction is legally acceptable. Moreover, now that people are more open about their marital problems, there is a broader acceptance that even good marriages can go through messy phases. The no-fault status can add a dose of simplicity to divorce proceedings since personal vices are not judged the way they might have been a century ago. You may still have to jump through some hoops, but neither person is obligated to provide a specific reason, let alone prove misconduct on the part of their spouse.

When Does Infidelity Impact Divorce Outcomes?

Despite the state’s no-fault status, there are still instances in which adultery can have an impact on the outcome of a divorce. This might be felt in one of two areas:

  1. Harm to children. The judge in your case will have an obligation to prioritize the best interests of your child or children. Any evidence of a parent directly harming a child has the potential to impact their access to certain parental rights. However, an affair alone isn’t generally considered harmful to a child in a court of law. Typically, there must be evidence of the affair putting a child in harm’s way, in which case the behavior could be grounds for limiting the parent’s custodial rights.
  2. Financial implications. Can you prove your spouse spent marital funds on travel expenses to meet with an affair partner or supported that person using your joint bank account? If so, you might be able to prove the dissipation of marital funds, which may impact the division of assets in your case. In some cases, evidence of dissipation might also shift the balance of how much will be owed in future spousal support payments.

Keep in mind that proving the dissipation of marital assets can be costly and time-consuming. Ultimately, it might not be worth it to sort through records and tally every meal, Uber ride and hotel room you suspect your ex of purchasing.

How Else Could an Affair Impact My Divorce?

Under local divorce statutes, judges may grant a maintenance award for either you or your ex, depending on your relative incomes and other factors, for a predetermined period of time. However, extramarital affairs rarely factor into the equation. A family law attorney can let you know the likelihood of maintenance, child support or any other aspect of your agreement being affected due to adulterous behavior.

If you want to know how infidelity might impact your divorce, consult an attorney at  Davis Friedman as soon as possible. Our attorneys are qualified to assist in any area of your divorce or separation, regardless of whether you or your spouse was unfaithful, and can help ensure your interests are protected. Contact us at  312-782-2220  for a consultation today.

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