Back to the Basics: How Will Adultery Impact Your Divorce?

 Posted on June 17, 2014 in Family Law

What is Adultery and How Does One Prove It?

According to a recent study, the leading cause of divorce is infidelity. However, proving adultery can be difficult. It is a very “fact-specific” analysis requiring clear evidence that one spouse actual did engage in sexual relationship with someone other than their spouse. To prove adultery, the spouse must offer some corroborating evidence in addition to his or her testimony that proves adultery by clear and convincing evidence.

Corroborating evidence usually requires another source that gives credence to a claim of adultery. Evidence of adultery can even be taken from social media websites like Facebook. Once proven, adultery can affect various aspects of the divorce proceedings--but not as much as one might suspect.

Adultery’s Impact on Divorce Proceedings in Illinois

Adultery technically remains as grounds for a fault divorce. Fault divorces are based on the bad conduct of one spouse that ultimately leads to a breakdown of the marriage. However, even if adultery is proven, that finding does not come with some automatic bias in favor of the other spouse during divorce proceedings.

For example, Illinois law specifically does not allow courts to consider fault when dividing assets between partners in most cases. One slight exception revolves around the issues of “dissipation.” This means that any marital assets that a spouse spends on another sexual partner (the mistress) can be added back into the marital estate to be equitably distributed. As with all issues related to property distribution, it will be critical to affirmatively show that funds were used on the extramarital affair, and mere speculation or accusations only would likely not be sufficient to sway the court.

In addition, adultery may be relevant when determining a few divorce-related matters. Most notably, child custody issues are always rooted in the “best interest of the child.” That usually means that many different factors can be considered. While not always relevant, sometimes one spouse’s adultery or on-going extramarital relationship can impact their ability to properly care for the child or otherwise influence a court’s final custody order.

Get Legal Help

One defense to the charge of adultery is condonation. This occurs when the non-cheating spouse learns of the other spouse’s infidelity, but forgives and continues to live with the spouse. Thus, if you are considering a divorce on the grounds of adultery, it is important that you immediately seek legal counsel lest your spouse later raise the defense of condonation. Whether you are concerned about spousal support, child custody, or the potential ramification of a divorce, the experienced attorneys at Martoccio & Martoccio can help. Contact us today for a free consultation in the Chicago area.