We see many people confused about whether or not cheating has an effect on alimony and property division decisions in a divorce. The answer is it depends on what “kind” of divorce you file for (fault vs. no-fault). Some states allow you to file for either, and some states only allow for no-fault. If you don’t want to rely on the default laws of your state and the unknown future, getting a prenup can help. Let’s dive in.
Fault divorce is a legal term for saying “the reason you’re filing for divorce.” The fault grounds that many states allow for include adultery, abandonment, cruelty, mental illness, and criminal conviction, and some states have others. This means that if your spouse cheats (adultery), you can bring evidence to your divorce and argue that the divorce should be granted on the grounds of adultery. The judge may or may not grant this. If they do grant this, it means that they may take into consideration the “fault” when determining issues like alimony and property division.
Keep in mind not every state allows for a fault-based divorce, so you should check with your state to know which grounds you may file for divorce for.
For example, let’s say John cheats on Jennie, and Jennie files for a fault-based divorce in her state (because it’s available), and she files on the grounds of adultery. She brings definitive evidence (photos and text messages), and the judge grants the divorce on the basis of adultery. The judge may now take into consideration John’s misconduct when awarding alimony and property division. This may result in Jennie getting more property in the divorce settlement, depending on the circumstances. The bottom line is that the judge CAN take into consideration the cheating when deciding who gets what in the divorce.
Here are the states that recognize some level of fault-based divorce (which is just over two-thirds of states!):
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
On the other hand, every state in the United States allows for no-fault divorce. Some states may be pure no-fault, and others may allow for no-fault AND fault divorce. No-fault divorce just means filing for divorce for no other reason other than you just don’t get along anymore. Many states call this “irreconcilable differences,” but some states use other phrases.
For example, let’s say John and Jennie are getting a divorce. John cheated on Jennie. They live in a pure no-fault state, meaning that fault-based divorce is not available. When Jennie files for a divorce, her only option for grounds of filing is “irreconcilable differences.” This means that John’s misconduct of infidelity cannot be considered when dividing property and making other divorce decisions. John will not get less money because he cheated.
How Cheating Affects A No-Fault Divorce vs. Fault Divorce
Okay, so let’s say your spouse cheated on you. You want them to “pay,” and you want a judge to say YOU get more money in the divorce. Is this possible? It is possible in a FAULT DIVORCE state. If your state allows for a fault-based divorce, then yes, you can theoretically get more out of the divorce if your spouse cheated. Now, it’s not as simple as walking up to the judge and pointing your finger, and saying, “he cheated!” It’s a little more complicated than that (and time-consuming and expensive). You will need to bring evidence, and your partner will have a chance to give their side, as well. In the most basic terms, you’ll have to “convince” the judge that your spouse cheated with solid evidence of infidelity. If the judge “sides with you,” then they can theoretically award you, the person cheated on, more property than the cheater.
On the other hand, in a no-fault-based divorce, the misconduct of either person cannot be considered when awarding property. That means even if your spouse cheated on you 100 times and you have video proof and a confession, it doesn’t matter.
Problems with Fault Divorce
You may be wondering, why wouldn’t every state allow for fault divorce? It’s great, right? If one person does something really bad, like cheat or commit a crime, they should be punished for it in the divorce, and the person who was “wronged” should be vindicated through the divorce settlement…right? Well, theoretically, maybe, but in practice, not so much. Airing out your dirty laundry in court is expensive and time-consuming. Not to mention, back in the day, the ONLY option for a divorce was fault-based divorce, and what ended up happening was spiteful spouses trying to make up things to get what they wanted in the divorce. You can see how this is not ideal for anyone involved, including the children of the marriage. Not to mention it sucked up the time of the court dragging out divorces longer than they needed to be.
How A Prenup Can Help
What can you do to protect yourself from unforeseen circumstances? Especially if you live in a fault-based divorce state, a prenup may be helpful. A prenuptial agreement (i.e., a prenup) can actually override the state default laws in your state regarding certain issues of the divorce. For example, you can lay out what happens in YOUR divorce in regards to alimony and property division which may not be exactly what would happen according to state default law.
The Bottom Line
Yes, in some states, if you cheat, you might be awarded less money. However, lots has to happen before that occurs. First, your spouse has to actually argue “adultery” as the grounds for divorce (remember, this is expensive and time-consuming). Second, the judge has to approve that and “agree” that adultery was committed. Third, the judge has to look at the circumstances of your case and ultimately decide to give the cheater less (or not). The good news? A prenup can help protect your assets no matter what the future holds.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]