Aug 28, 2015

The Financial Cost of Infidelity in Divorce

Earlier this month, the Ashley Madison customer list hack story unfolded like a compelling summerbeach novel. The imagined made-for-TV aftermath is equally fascinating to people sitting on the sidelines–wronged wives calling their divorce lawyers and demanding compensation and punitive property settlements for the suffering and humiliation caused by their cheating husbands!Reality, however, is not as dramatic, at least in not in Illinois. Here, financial outcomes in divorce cases are not determined by moral imperatives. Simply put, bad conduct like infidelity by one spouse does not legally entitle the wronged spouse to a larger property settlement or additional financial support.While at first blush this may seem “unfair”, practical considerations underlie the law. Proving infidelity can be difficult and courts cannot equitably and objectively quantify the financial compensation requested by a wronged spouse. For example, does a one night stand merit a smaller settlement than an ongoing love affair? If the answer is yes, then how much smaller should the settlement be? And what if the wronged spouse considered divorce for years before the infidelity? What if he or she also cheated? Do these facts offset against the amount he or she would otherwise receive? These are some of the very difficult issues courts would need to decide if bad acts like infidelity entitled a spouse to more financial compensation.Although Illinois Courts do not have the authority to award additional property or support for infidelity, cheating spouses might end up paying in other ways. Often, the emotional distress experienced by a wronged spouse will cause protracted litigation and, as a result, both parties will incur additional legal fees in retaliation for the infidelity. In settlement negotiations, infidelity is often used as leverage to obtain a favorable outcome for the other spouse, especially when the cheating spouse does not want his or her infidelity to become public knowledge.In addition, parties to a divorce in Illinois can pursue dissipation, which is reimbursement to the marital estate for marital funds spent on purposes unrelated to the marriage after the breakdown of the marriage. Funds spent on significant others fall into this category. For example, if a husband is found to have spent $10,000 on travel, gifts and entertainment for his girlfriend, if it is after the marriage has broken down, then the wife is entitled to have 100% of that amount returned to the “marital pot” to be divided, with Husband getting “credit” against his ultimate share of the “marital pot” for the amount already spent on the girlfriend. Thus, assuming that the parties’ marital estate is ultimately going to be divided 50% to each party, the Wife would receive an additional $5,000, or 50% of $10,000, for the Husband’s dissipation, with the premise that he has already spent his $5,000. Discovery (the exchange of information and documents) related to dissipation claims can significantly escalate legal fees and increase the length of a trial. However, since dissipation is addressed at the end of a case, a wronged spouse may have to wait months or years to have his or her “day in court” on this issue.Infidelity is a violation of trust, and therefore, it may appear unjust that a court cannot give a wronged spouse financial restitution. Hopefully, understanding the reasons behind this can be a first step in determining how and when to move forward and setting realistic expectations about the impact of the infidelity on the divorce.

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