Cheating Spouses and Divorce

Martial Infidelity & Divorce

Catching your spouse with another person is the biggest fear of most people. Trying to make that person pay for it during a divorce can be one of the biggest headaches during a divorce. This entry discusses Pennsylvania's divorce statute as it deals with this issue.

You have choices in trying to make your spouse pay for an infidelity. The first is Title 23 section 3301(a)2, which makes adultery one basis of fault divorce. You can start the divorce off by pointing a finger at your spouse and demanding that the court take the infidelity into account in dividing assets. After all, the divorce would not have occurred if not for the cheating.

Keep in mind that this is often a real fight. Do you have evidence? Seeing your spouse with another person at a diner does not count. No law prohibits two people from being friends just because one of them is married. Many people feel jealousy over the other person's friendships, but this is not adultery. The best evidence is sexual in nature. Private investigators are usually needed.

If you do feel jealousy over the other person's friendships, maybe you should see a counselor, pastor, priest or rabbi. Such feelings are normal and can be dealt with, but should never be allowed to control the decisions in your life. The worst decisions come from acting on pure emotion.

On the other hand, if you talk to your partner about your feelings and he or she is indifferent or enjoys making those feelings worse, then perhaps you should seek a no-fault divorce based upon irreconcilable differences. Do not point a finger. Do not feel anger. This is the kind of situation in which you should simply walk away, no questions asked. A lawyer can get you out of such a marriage with a minimum of fighting if you can get your spouse to understand and accept your decision to leave. People do manage to have reasonable, calm divorces.

Another problem with this type of divorce is that your spouse can contest it. Only the strongest evidence is beyond attack, and many times when you believe that you have clear evidence of cheating, you later find out in court that it was not as good as you thought it was. Even if you win, you will be able to look back at a long and painful struggle in court with attorney's fees that cause migraines every time you think of them.

This is the reason that Pennsylvania has enacted no-fault divorce statutes. A no-fault divorce cannot be opposed for long. This type of divorce is usually over within six months, including the distribution of property. But no-fault does not mean that the cheating is ignored. Read on.

No-fault is truly no-fault in that the divorce can go through without regard to who did what to whom. But no-fault does not completely ignore adultery. Under the alimony statute, any "marital misconduct" can be considered in awarding alimony. Section 3701(b) states: "Factors relevant. -- In determining whether alimony is necessary and in determining the natrure, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including: ... (14) The marital misconduct of either of the parties during the marriage.

The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony; ..." Marital misconduct here includes adultery but only during the marriage up to the separation.

Proving that your spouse cheated under a no-fault alimony petition is not as difficult as under the fault-based divorce statute. However, the court has discretion and may not consider the cheating to be worthy of as high an award as you believe it does, or any award at all if the evidence of it is not strong. As the statute says, the Court "shall consider all relevant factors," meaning that the court must do so, but at the same time, the amount is left to the discretion of the judge.

Another way that cheating can be accounted for is in equitable distribution. Section 3502(a)7 makes the contribution or dissipation of marital assets a key element in dividing marital property. If your spouse purchased lavish gifts for his or her "friend," the Court can count those gifts against him or her in awarding marital property. But the gift would have to be an expensive one. Diamond rings worth thousands, luxury cars, and other large expenses are hard to overlook.

Take note of the fact that cheating alone is NOT considered in equitable distribution! As stated above, alimony is the area dealing with cheating. Equitable distribution is only involved if martial assets were depleted due to the cheating.

A final way in which the cheating spouse may be held accountable is in the child custody battle that often ensues during divorces involving custody. This is a touchy issue and you must be careful to understand what the court looks for. The only thing that the court is concerned with is the best interests of the child. As cruel as your spouse's betrayal might have been for you, the court does not consider it in your custody battle unless it shows indifference to the best interests of the children. The presumtion in such cases is that both parents love their children and that one of the parents is going to take care of children on a day to day basis while the other sees the children as often as possible. The practicalities of daily life force such a scheme on divorced parents but this has absolutely nothing to do with the cheating. Adultery is only relevant as evidence that a parent poses a threat or would be a bad influence on the child.

Be careful in fighting to deny your child his or her other parent. Think about whether you are doing so for the best interests of your child or because you are angry. Even if you are certain that your spouse is a bad influence, speak to a counselor, pastor, priest or rabbi about your child's emotional health and learn how best to help your child through such an ordeal. Do not forget that the pain that you feel is probably felt by your child as well.

I hope that this short overview of adultery and the laws of Pennsylvania has been helpful. As always, please note that this information is NOT LEGAL ADVICE and cannot replace the counsel of a lawyer who has reviewed the facts of your case with you in person. These issues are complex and require careful consideration before going into court. If you are in the Philadelphia/Bucks County area and would like to discuss your case with me, call me at 215-805-0444. Otherwise, call your local county bar association for a referral. Good luck to you!