When you file for divorce, you must list your proposed reasons — or grounds — for the divorce. All states allow no-fault grounds, which may be called “irreconcilable differences” or “irretrievable breakdown of the marriage.” When you file based on no-fault grounds, you don’t have to prove that your spouse committed misconduct. However, your state may also allow adultery to be used as a fault-based ground for divorce. As the spouse who filed for the divorce, you have the burden of proving he committed adultery.
Impact of Misconduct
Your state’s laws determine whether your spouse’s adultery has any effect on property division, spousal support or child custody decisions. Your state may allow judges to consider your spouse’s adultery or other misconduct, even when you use no-fault grounds for divorce. On the other hand, some states, like Illinois, may not allow your judge to consider marital misconduct at all, except for establishing grounds for divorce or in claims alleging dissipation of assets.
Dissipation of Assets
Even if your judge doesn’t consider the adultery relevant, you may be able to claim financial credit under a dissipation of assets claim. This type of claim asks the court to award you money to offset the money your spouse spent on his adulterous relationship. In other words, you want to get back the money he spent on someone else rather than for marital purposes.
Spousal Support and Custody
In some states, like Georgia, the adulterous spouse cannot receive alimony if his adultery is the reason for the divorce. In other states, the adulterous spouse can receive alimony if he is otherwise qualified for it. Child custody issues are a bit more complicated, since a parent’s adultery does not necessarily harm the child. The court may award less custody to the adulterous parent if he involved the child in the adultery; for example, if he asked the child to lie for him. Otherwise, the adulterous parent may receive a significant share of custody since the court’s greatest concern is to award custody in a way that is best for the child.