Can a Cheating Spouse Be Penalized in Divorce?

• Are there consequences for cheating or infidelity in divorce?
• Can a cheater be punished in the divorce settlement?
• Get answers to your questions

Marriages end for a variety of reasons, but one of the most common and challenging is when one spouse has committed adultery. According to the American Association for Marriage and Family Therapy, studies indicate that 15% of women and 25% of men go outside their marriage for sexual intimacy. 

Can a spouse who commits adultery be penalized in their divorce proceedings? If you’re in this situation, it’s important to understand that divorce courts aren’t in the business of “evening the score” between divorcing spouses. A cheating spouse will not necessarily get punished for their infidelity, even if the other spouse uses it as grounds for divorce. 

In certain circumstances, however, a married person’s act of adultery could affect aspects of their divorce settlement. Let’s take a closer look.

Are there consequences for adultery in a divorce case?

In some states, adultery is still considered a criminal act. However, these laws are rarely enforced. Even though all states now have no-fault options, fault-based divorce states still allow adultery to be used as legal grounds for divorce. 

But if you’re seeking a divorce based on adultery, it may not be easy. And if you were hoping to get some satisfaction from these legal grounds, you may not get it.

Adultery in an at-fault divorce

In fault-based states, divorce on the grounds of adultery is common. But adultery can be complicated, expensive, and time-consuming to prove and litigate. 

The spouse filing for divorce must have hard legal evidence of their spouse’s infidelity. Direct evidence of the extramarital affair is required – not hearsay. This evidence must come through appropriate legal channels. Any evidence collected outside of a lawful manner, such as accessing your spouse’s phone or email without permission, is likely to be dismissed by the court. 

Thus, getting sufficient evidence may require hiring expensive private investigators with no guaranteed results. And litigating a fault-based divorce prompts significant attorney’s fees and court costs. 

While a cheating spouse will not necessarily be “punished” for their infidelity through divorce, however, some elements of the divorce settlement may be affected by their infidelity. These can include the division of marital property, spousal support allocation, and in some cases, child custody. 

Adultery in a no-fault divorce

In a no-fault state, there is no proving fault. The divorcing couple merely cites irreconcilable differences, an irretrievable breakdown of their marriage, or that they have been separated according to their state’s legal requirements as the reason for seeking a divorce. 

But even in a no-fault divorce, adultery can still have an effect on the same aspects of the divorce settlement – property distribution, spousal support, and custody – as they can in a fault-based divorce. 

Can a cheating spouse be punished in a divorce settlement?

We mentioned that some aspects of a divorce settlement may be affected by adultery. However, that’s not because the courts mete out punishment for it. In most cases, infidelity isn’t considered pertinent to the court except in very specific ways: 

Division of marital assets

An affair can be expensive. There may be gifts, hotel rooms, secret getaways, and other expenses. If a cheating spouse used marital funds to pay for these things during the affair, it can strengthen the other spouse’s case for keeping more of the marital assets in the property division.

Alimony

In some states, when spousal support is awarded, a court may take the infidelity of the other spouse into consideration when deciding how much support to allocate. 

Child custody

If the couple’s children were exposed to the affair, it could impact the court’s custody decisions, but this is rare. In most cases, unless the kids were in harm’s way, courts generally believe that it's still in the children’s best interests to have both parents in their lives, even if one spouse cheated.

A cheating clause in a prenup or postnup

In rare cases, partners insert a “cheating clause” in their prenuptial or postnuptial agreement. In a case like this, a cheating spouse’s adultery would be subject to the clause in the event of a divorce.

Pursuing a no-fault divorce may simplify the divorce process and significantly reduce costs. The filing spouse may still be able to use the other spouse’s infidelity to gain leverage when negotiating the settlement. 

Watch: If Your Ex Cheated, Can You Get More Money In Divorce?

I have questions about how adultery will affect my divorce

Depending on where you live, you’ll need to understand your state’s divorce laws and how adultery may affect you in light of your circumstances. At Hello Divorce, we have divorce coaches on staff who can provide professional advice and support. A coach can help you create an actionable plan that’s right for your situation while looking out for your well-being.

We also offer a host of online divorce plans, one-on-one time with an attorney, and a host of other services. We’re on your side. Schedule a free 15-minute call to learn how we can help.