The breakdown of a marriage is often mutual. In other cases, the reason for divorce can be linked to the behavior of one spouse only. Although some states have moved away from traditional fault grounds, adultery may still affect certain aspects of a divorce, such as spousal support, property division, and in extreme cases, child custody determinations.
Your ability to file for divorce on the fault ground of adultery can vary from state to state. Some states, such as California, do not allow parties to get a divorce based on adultery. Other states, including Texas, will grant a divorce if you can prove that an extramarital affair occurred. However, even in states where adultery is not recognized as a fault ground for divorce, adultery may still affect how issues that relate to spousal support, property division and child custody are decided. However, it is not enough to simply allege that your spouse has been unfaithful. You must provide sufficient evidence proving adultery occurred, such as the testimony of witnesses, emails, bank records, or other direct or circumstantial evidence.
As of 2013, 27 states, District of Columbia and territory of Puerto Rico include adultery as one of several factors considered when determining whether an unfaithful spouse may receive alimony, also known as spousal support or maintenance. Further, some states, including Georgia, prohibit an unfaithful spouse from receiving alimony if it can be shown that the affair was the cause of the marital breakdown. However, because the purpose of alimony is to provide financial support to an economically disadvantaged spouse, it is rarely ordered or denied as a means of punishing the cheating spouse.
Adultery may also affect how property is divided. Even in community property states, in which assets are to be divided on an equal basis, some states, including Texas, allow judges discretionary power to order an unequal division in favor of the faithful spouse. In cases in which the cheating spouse used a portion of the marital assets to support an affair, such as purchasing jewelry or funding secret trips, a court may award a greater portion of marital assets to the faithful spouse to make up for the lost marital property.
Normally, adultery does not have an impact on child custody. When making decisions regarding parenting arrangements, courts will consider several factors to determine what arrangement would be in the child's best interest. Unless you can show that the cheating behavior negatively affected your child, it will be difficult to use the affair as the sole basis for limiting custody. For example, a court may consider adultery as a factor in determining custody if the cheating spouse involved the child in the affair by bringing the mistress into the child's presence or by asking the child to lie for him, or if the affair caused the innocent spouse to become so distraught that she required medical care or hospitalization; thus, becoming unable to properly look after the child.