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Heather Jones

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 law moved away from acknowledging alienation of affection claims to adopt a no-fault divorce approach. Under this approach, there is no need to establish any particular grounds for divorce, such as adultery; instead, the only requirement is irreconcilable differences, which simplifies the process of filing for divorce. This development reflected a broader societal transition towards gender equality under the law and a move away from traditional gender biases.

The abolishment of ‘heart balm’ torts like alienation of affection mirrored the legal evolution in many other states, marking the obsolescence of these older laws. The repeal of such claims not only simplified the divorce process but also reduced the potential for mudslinging and character assassination in court.

 

Alimony paperwork with two gold wedding bands

 

Does Illinois have Homewrecker Laws?

As of January 1, 2016, Illinois abolished its ‘heart balm’ acts, which included the alienation of affection statute and the marriage act. This reform removed the possibility for individuals to sue a third party for contributing to the breakdown of their marriage. To substantiate alienation of affection claims, evidentiary support for several intricate components was needed: the presence of love in the marriage, the loss of this love, and the defendant’s malicious behavior contributing significantly to or causing this loss.

Defenses against such claims could be constructed arguing a lack of knowledge about the marriage. However, pre-existing marital problems were not viable defenses unless they had already substantially eroded the marital love. Prior to their abolition, the ‘heart balm’ acts, including alienation of affection claims, resulted in a minimal number of lawsuits and permitted only limited damages. The difficulty in proving these claims and their minimal impact on lawsuits were some of the reasons why they were eventually dismissed.

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.  

Civil Lawsuits for Intentional Infliction of Emotional Distress

One legal alternative available in the face of infidelity is filing civil lawsuits for intentional infliction of emotional distress (IIED) when a spouse cheated. An IIED claim can be filed if the spouse’s behavior was notably outrageous or reckless and was intended to cause distress. To win an IIED lawsuit, the plaintiff must demonstrate actual emotional pain, prove a direct connection between their distress and the spouse’s behavior, and the significant impact it had on their life.

Expert testimony, such as from a counselor, is often essential in proving substantive claims of emotional harm caused by a spouse’s adulterous actions in an IIED case. When contemplating filing a lawsuit for Emotional Distress due to adultery, it’s necessary to weigh the practical considerations, like the possibility of thorough financial compensation versus the expenditure and time required.

Pursuing Damages for Marital Misconduct

In Illinois, individuals can also seek legal recourse for marital misconduct, such as proving adultery and dissipation of assets in divorce cases. Proving adultery can be a pertinent part of a divorce case in instances where dissipation of assets is alleged, with marital funds having been spent on an affair.

Engaging a skilled lawyer is critical to navigating the complexities of such legal issues. An attorney ensures that all relevant factors are considered in the pursuit of damages for marital misconduct, from proving the occurrence of adultery to demonstrating the improper use of marital assets.

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.  

Frequently Asked Questions

Is alienation of affection legal in Illinois?

No, alienation of affection is not legal in Illinois. It is not recognized as a valid claim in the state.

Can you sue someone for cheating with your spouse in Illinois?

No, you cannot sue the affair partner for damages in Illinois. The affair will not influence divorce-related matters due to the state's no-fault divorce laws.

What is the punishment for adultery in Illinois?

In Illinois, adultery is considered a Class A misdemeanor and can result in a fine of up to $2,500 and up to a year in jail. It's important to be aware of the legal consequences.

Is it worth suing for alienation of affection?

Suing for alienation of affection may not be worth the time and effort unless you stand to recover a substantial amount in damages. You are already dealing with the emotional fallout of a cheating spouse and possibly the process of divorce.

How does adultery impact the division of marital assets in Illinois?

In Illinois, adultery may impact the division of marital assets if it involves the dissipation of marital assets during the affair. Therefore, it can affect the division of assets.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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