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It used to be that adultery was the basis for getting a divorce. It would be listed as a reason in any divorce filing, and you would have to appear before a judge and prove that the infidelity occurred. Infidelity would be considered in the granting of the divorce and possibly position the non-cheating spouse for a financial advantage. In modern times, the no-fault divorce, or more appropriately, the dissolution of marriage, means that while you may file for divorce because of cheating, the court will not consider infidelity when granting your dissolution or determining alimony. If you are wondering if your spouse’s cheating will mean more alimony for you, the general answer is no. Infidelity does not mean you will get more alimony or alimony for longer. Illinois will sometimes consider factors that might be related to infidelity when determining alimony. Read on to find out more about the impact, if any, infidelity can have on an award of alimony.  For more general information on divorce in Illinois read our article, Recent Changes to Illinois Divorce Laws 2022.

 

What is Adultery in Illinois?  

 

Illinois does have a statute that addresses infidelity, but it cannot be used as the basis for a divorce since Illinois is a no-fault state. In Illinois, if you want a divorce, you ask for one based on “irreconcilable differences,” and not for adultery. 720 Ill. Comp. Stat. §11-35 defines adultery and classifies it as a misdemeanor, but it is not used for divorce. The status defines adultery as “having sexual relations with someone who is not your spouse.” For more information about how the state of Illinois views adultery, look here: (link to another article)  

 

Alimony paperwork with two gold wedding bands

 

Does Illinois have Homewrecker Laws?

 

The so-called “homewrecker laws,” more formally referred to as “alienation of affection, did exist in Illinois. These laws have been around in some form since the 17th century. Generally speaking, with a homewrecker law, one spouse can sue the person their spouse cheated on them. Six states, including Illinois, still have homewrecker laws on the books, but they are controversial laws since it seems illogical that one person can own the affection of another. Now the homewrecker laws in Illinois have been deemed unconstitutional in Illinois (going against the state constitution), and filing a lawsuit pursuant to those laws will probably get the filer in a lot of trouble. It is advisable that you do not try to file a lawsuit in court against the person your spouse cheated on you with. On the other hand, if your spouse wastes marital assets in the course of their affair, you may be able to recoup in that way, which we will discuss later in this article.  

 

How Does Illinois Calculate Alimony?

 

In order to understand how you might be able to recoup some money for your spouse’s affair, first, you need to understand how the courts in Illinois decide if alimony should be paid, how much, and for how long. Illinois spousal support or alimony is typically only awarded when there is a notable financial disparity between spouses and the marriage is not a short-term marriage.  

With an understanding of what the court will generally look at when deciding the issue of alimony, we can then look at item number twelve, any other factor that the court deemed equitable and just. In this particular scenario, if the court looks at the financial documents or other evidence presented and sees that the cheating spouse has been spending a lot of money, or in other words, marital assets, in order to pursue the outside relationship, the court will take that into account when determining alimony and/or property division. In the legal field, this is typically referred to as “wasted assets.”  

 

Wasted Assets

 

In Illinois, if one spouse alleges that the other spouse has wasted marital assets in the pursuit of an affair, the court will consider ordering that spouse to reimburse the marital estate prior to division or an award of alimony. This can also be called “dissipation,” where one spouse has used resources that should belong to the marital estate in order to pursue an affair. What that means is not that you could get more alimony as a punitive measure but that your soon-to-be ex-spouse will be required to repay what they spent in the pursuit of an affair. This could be a relatively large number if your spouse spent an exorbitant amount and that figure is proved in court. An example would be if your spouse bought a car and paid for an apartment for the person they had an affair with. That money is community and would have to be returned to the marital estate, which was dissipated by the expenditure. It could be helpful in such cases to hire a forensic accountant to investigate and identify where your spouse spent any money that should be in the marital estate but is not there anymore. A forensic accountant can also come in handy if you suspect your spouse is hiding assets in order to avoid proper division or claim that they cannot afford to pay alimony.  

Considerations Regarding the Children

 

An affair can absolutely wreck the relationship between two parents, but what happens when it affects the children as well? While this article is mainly about alimony, there is always the possibility that the lifestyle your soon-to-be ex-spouse is now pursuing is not an appropriate one for the children to be around. If you have children and your spouse’s activities are detrimental to a stable household that meets the best interests of the children, you may get greater parenting time with the children, which will be factored into the calculation for child support. Generally speaking, in Illinois, the more time a parent has with the children, the less child support they will have to pay. If your ex-spouse either should not or will not spend an equal amount of time with the children, the child support amount will adjust accordingly.  

 

No one wants to be cheated on, and discovering that your spouse had been unfaithful is an emotional blow that can take years to recover from. Naturally, anger is a widespread reaction, and the urge to try and make them pay for what they did is also a common reaction. The law does not support awarding a higher amount of alimony in retaliation for infidelity. There are some ways to ensure that your spouse does not get away with dissipating the marital estate, but they do take work and knowledge of what the court system will do and not do in your favor. If you are struggling with a spouse who has cheated on you and used marital assets in order to do it, there are possible options for you. O’Flaherty Law has a group of aggressive and experienced Illinois family law attorneys who can help you; feel free to reach out and schedule a consultation today.  

Posted 
January 23, 2023
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