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Do Judges Care About Adultery in Divorce?

Updated: Feb 7

So, your spouse has committed a cardinal sin-adultery. Understandably, you probably want to leave that behind and get a divorce.

Before you jump the gun, though, it’s important to understand how adultery may impact the proceedings.

In some states, adultery is a factor that can be considered when determining alimony, child custody, and property division. All of which are likely to impact you in some way.

If you understand how the law interprets adultery, you’ll make far better decisions while going through your divorce.

What Is Adultery?

Adultery, sometimes referred to as infidelity, is when a married person has a sexual relationship with someone other than their spouse.

Yeah, it’s cheating. Adultery is cheating.

If you are considering divorcing your spouse on the grounds of adultery, knowing how your state views infidelity is critical, since it may or may not have the impact, you’re expecting.

What Do Judges Consider During Divorce?

Different states have different laws regarding divorce, and adultery is no exception. We’re sorry to report that in some states, like New York, infidelity is not a factor that is considered when making decisions about the division of assets or custody of children.

We know. That last part can be a big yikes.

However, in other states, like Florida, adultery may be considered when making these important decisions.

Where infidelity is a cause for divorce, it can also be used as a factor in deciding how to divide assets and custody arrangements. For example, if one spouse had an affair, which led to the breakdown of the marriage, a judge may award that spouse less marital property or limit their parenting time.

Sometimes judges will consider several factors when deciding if adultery had an impact on the marriage. These factors include:

  • The length of the affair: A long-standing affair may have a more significant impact on the marriage than a one-time occurrence. (Think of how it could have impacted the kids).

  • The effect of the affair on the marriage: If the affair led to financial problems or caused one spouse to neglect their family responsibilities, it may be given more weight than an affair that did not have a significant impact on the marriage.

  • The age of the children: If the children are young, a judge may be less likely to consider adultery when making decisions about custody and visitation.

  • The mental and physical health of the spouses: A spouse who is suffering from depression or anxiety may be more impacted by the partner's affair than a spouse who is in good mental health.

Judges have a lot of discretion when deciding how adultery will impact a divorce. Even in no-fault states, where infidelity is not grounds for divorce, a judge may still consider it when making property division and alimony decisions.

Fair enough, we think.

Adultery and Your Rights

If you’re a victim of adultery, you’re likely wondering what rights you actually have. Again, it all depends on your state, which can be a little frustrating.

However, even if your state doesn’t allow for fault-based divorces, a judge may still use adultery as a factor in deciding how to divide assets and arrange custody.

Factors That May Cause Adultery to Be Considered During Custody Proceedings

Live in a state where adultery-based divorce doesn’t fly? Don’t give up hope just yet. A few factors may cause adultery to be considered during custody proceedings, even if the state doesn’t typically consider it. These include where the cheating spouse:

1. Carried on the Affair in Front of the Children

If the children were aware of the affair, it may be considered when making custody decisions. After all, this says a thing or two about the cheating parent and their ability to make wise and responsible choices for their children.

What child benefits from their mother or father parading a lover around? The answer: none.

2. Used Money Meant for the Children to Support the Affair

If you can prove that your cheating spouse used money meant for the children to support their affair, this may be considered when making custody decisions.