How to Divorce Someone Who Cheats

by Wayne Thomas
Several states continue to recognize adultery as grounds for divorce.

Several states continue to recognize adultery as grounds for divorce.

David De Lossy/Photodisc/Getty Images

Finding out that your spouse is cheating on you can be a devastating discovery. Beyond the emotional wounds, you spouse's affair may have impacted your marital finances or the well-being of your children. Knowing how the presence of an affair can affect specific aspects of a divorce will help you best prepare for the process of dissolving the marriage between you and your adulterous spouse.

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Available Grounds

The first step in divorcing a cheating spouse is to determine whether your state allows you to divorce on the basis of adultery. If your state only allows no-fault divorce, you will need to make sure you meet the basic legal requirements. These requirements are typically separation for a period, or an affirmation by you or your spouse that the marriage has suffered an irretrievable breakdown.

Filing the Divorce

The next step is to obtain the appropriate divorce paperwork -- typically, this is called a petition or a complaint -- from the court clerk. In the paperwork, you are required to specify the grounds for divorce, and include your requests regarding property, spousal support and child-related matters. These forms are then filed with the court, and states usually require that you then hand-deliver a copy to your spouse with the assistance of a sheriff. Your case will move forward once this step is complete.

Proof

If you filed your divorce on adultery grounds, or you would like the affair to be considered by the judge during property division or child custody determinations, you will need to prove that it occurred. This step requires more than just bare allegations, and the process can be highly invasive and emotional for all involved. Typically, proving your case involves collecting the relevant evidence, such as phone records, or video recordings, and presenting your argument to the court. You must also follow all procedural rules for introducing evidence and examining witnesses, which can be difficult without the assistance of an attorney.

Property Division

The degree to which the affair will affect property division in your divorce depends on your state. Some states allow a judge to use marital fault as factor in favor of reducing your spouse's share, while others take the position that property division is not meant to punish a spouse for his behavior. However, many states will allow you to ask for a larger share of the marital assets if you can prove that your spouse dissipated assets to support the affair. For instance, if you have bank receipts showing that your husband purchased jewelry with marital funds as gifts for his paramour, this can be used to reduce the amount of property your spouse receives in the divorce.

Child Custody

If you have minor children, evidence of your spouse's affair may be introduced during the custody phase of your divorce. Here, the focus is on whether the behavior of your spouse and his adulterous relationship is detrimental to the best interests of your child. Although an affair does not automatically affect custody, some courts have held that introducing a child to a paramour while the parties are still married, coupled with the exposure to other inappropriate people or situations, could negatively impact the child's welfare and be grounds to award sole custody to the other parent.