No. Maybe. Even in today’s digital world, marital infidelity is difficult to define. Nevertheless, statistics show that “cheating” is one of the biggest factors in filing for divorce. Decades ago, the various states adopted the concept of no-fault divorce. This means if one party states the marriage is broken and wants a divorce, this is enough for the court to have jurisdiction over the matter. In the past, adultery or other wrongdoing was required; this is no longer the case.
There are now specific statutory reasons for a divorce under current Indiana law: irretrievable breakdown of the marriage; the conviction for a felony committed by a spouse during the marriage; impotence existing at the time of the marriage; or incurable insanity of either party for a period of at least two years.1 Practically, most all litigants cite to an irretrievable breakdown in the marriage when filing. However, while the “fault” from an affair is not jurisdictional, an affair may matter in court and have legal significance in a divorce case in one of three common ways addressed in this blog post.
Perhaps the most common way an affair plays out in a divorce is where the spouse who was “cheated on” is emotionally suffering from this revelation. Maybe the other spouse is even having a child with his or her paramour. In this case, although not necessarily legally significant in terms of custody or property division, this emotion may manifest itself in several significant ways and impact the divorce litigation; sometimes, for example, a spouse who is still reeling from the discovery of an affair may become rigid in legal objectives and make simple legal issues impossible to settle and cause them to be litigated. Thus, one spouse is really fighting an emotional battle (and healing from the hurt at the same time) while the other is fighting a legal battle to be divorced on the best terms, in the shortest time possible, and for the least cost to move on in life. This dynamic plays out practically in the case dragging on—sometimes for years—and having increased legal fees. To the extent this dynamic can be identified by you with counsel, there are ways to minimize its impact in the case. The Divorce Act has numerous tools to assist the attorneys and litigants through the court to move the divorce along the way to a final dissolution of the marriage, such as where a spouse is causing unnecessary delay and costs associated with learning about an affair.
As it relates to child custody and a court deciding the parents’ physical and legal custody and parenting time in the child’s best interests, issues relating to an affair sometimes creep in or significantly impact, the divorce proceedings. At perhaps the most basic level, a spouse’s introduction of a new significant other to the children of the marriage can ignite a firestorm and all sorts of claims and allegations sometimes occur that may or may not impact the custody decision the court has to make.
One such issue is where the spouse insists the children call his or her new partner “mommy” or “daddy”. If this is true, it is potentially significant. If it is not, but some statement of the children makes the other spouse believe that is the case and occurring, then emotional dynamics may drive custody objectives that may not have existed in the past. On a more substantial level, a new partner may (with the divorcing spouse) have other issues they interject into the marital divorce dynamic impacting custody, such as alleged drug use or high-risk behavior by the new partner. At a minimum, the addition of a new adult into the children’s lives creates layers of additional considerations for the divorce court to “wade through” in making custody decisions.
Sometimes, the situation changes custody decisions for the benefit or detriment of either parent. This is a complex legal situation that should be carefully navigated with counsel and may require the assistance of an expert, such as a custody evaluator, to assist the court and present the case in court—your case.
While an “affair” may seem far removed from the property division in any given divorce case, every seasoned divorce lawyer knows it comes front and center at times in the property division. For instance, a credit card statement may reveal a gift or trip by divorcing spouses for the benefit of the new boyfriend or girlfriend. Such information is commonly significant in one of two ways. First, the emotion it evokes may, again, entrench a spouse in a position where the cost of the trip or gift and recovery of this sum is more important than the rest of the case. Again, there are ways to mitigate this with counsel. Second, in some cases, the amount of marital money diverted from the marital estate to a new partner may be significant and constitute dissipation of marital assets. This means, if identified, your counsel may seek that to be accounted for in the division of assets to the spouse who “lost” this part of marital assets. These are but a couple of examples how an “affair”, while not necessary to form a legal basis to get divorced, may have a major-to-significant role in divorce proceedings. This is an important complex legal issue to identify and navigate with counsel for the best possible outcome relative to your legal objectives.
Dixon & Moseley, P.C. advocates handle divorce and paternity cases of all types throughout Indiana, including divorce cases where some type of marital infidelity is involved. In most cases, they are complex matters that change along the way. Identifying and managing these issues is the key to moving the divorce along to allow for a dissolution of marriage and to present your case as to what custody arrangement is in the children’s best interests, as well as how an affair may impact the property division. This blog was written by attorneys at Dixon & Moseley, P.C. It is for general educational purposes only and is not intended as legal advice, nor a solicitation for services. It is an advertisement.
