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Does Cheating On Your Spouse Impact The Divorce?

Article written by Attorney Kevin O'Flaherty
Updated on
September 21, 2020

In this article, we discuss the impact of an affair or adultery on Illinois divorce proceedings and answer the following questions:

  • Are there any legal ramifications for cheating on your spouse?
  • How does an affair or adultery complicate dividing marital assets?
  • How does an affair or adultery impact child custody?

In a divorce, it’s normal to wonder what the other party might try to use against you during the negotiating process. “Will they try to pull all my text messages and e-mails?” “What about my expenditures and bank statements?” These are just some of the questions that keep many divorcing couples up at night. 

Are There Any Legal Ramifications For Cheating On Your Spouse?

Generally, no. Unless a prenuptial agreement exists that specifically addresses ramifications for an affair or adultery, there are no immediate legal ramifications. Furthermore, marital misconduct is not legally taken into account when determining things like spousal support, child custody, etc, during the divorce proceedings. However, it can significantly complicate the process. Couples considering divorce likely already have a severe breakdown in their relationship and if cheating was involved, one or both spouses may harbor considerable ill will. 

How Does An Affair Or Adultery Complicate Dividing Marital Assets?

While there are certain guidelines that parties must follow in dividing marital property in Illinois (you can read about these here and here), room is left open for negotiation; and if one party is set on retribution, the negotiating process—and the tactics that party may take—is bound to get ugly. The cheated on party may try to hide assets, lie about finances, or become unreasonable, asking for more assets and support than what is warranted. This makes things more difficult for both parties, but certainly the attorney representing the scorned party will have to make sure his or her client doesn’t do anything illegal or amounting to fraud.

If the party accused of adultery was spending money from a joint bank account it will certainly come into play in negotiations. The attorney for the cheating party should plan to find ways to placate the other side and come to a decision that is fair when taking their clients behavior into account.

How Does An Affair Or Adultery Impact Child Custody?

It’s not abnormal for the cheating party in a divorce to suddenly find an order of protection against them seeing their spouse or children. While these orders won’t stand up in court—unless there is evidence that the child or spouse was being abused, neglected, etc—the attorney for the adulterer may still have to spend time proving that the order was merely an act of revenge. Assuming the third party was around the children, a common argument behind the order of protection is that the adulterer was placing the children in an unsafe situation by exposing them to the third party. Whatever the specifics of the situation, the attorney for the alduterer should be prepared to defend against the idea that their client can’t be trusted with the children because of his or her past misconduct.

The bottom line is that few divorces are clean and amicable. Adding an affiar or adultery into the mix will only serve to complicate the process.

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Does Cheating On Your Spouse Impact The Divorce?

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