Does an Affair Legally Matter in Divorce?

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Does an Affair Legally Matter in Divorce?

With the advent of no-fault divorce, many think that fault no longer matters.  As it relates to divorce, the viewpoint is that an affair does not matter at all.

Some think that courts will not look at it and give it no weight at all.  In the end, the view is everything is going to be divided in half anyway.  Child support and maintenance is going to be what it is.  And in terms of child custody, many think an affair is irrelevant.

Is this correct?  The reality is that this viewpoint is not accurate in many states.  It is true that to get divorced, parties do not have to show fault for a divorce to be granted.  Before the advent of no-fault divorce, parties would have to show fault like an affair, abandonment, emotional cruelty, violence or some other fault of some kind to get divorced.

But with no-fault divorce, that is no longer required.  The exact language varies by state, but generally speaking, parties simply have to show that a marriage is irretrievably broken to get divorced.

But in terms of marital property and debt division, and spousal maintenance (alimony), many states still allow the conduct of the parties as one of the factors in terms of making that determination. States like Missouri, Kansas, and Oklahoma fall into that category. However, Illinois excludes fault as a consideration by statute.

But in terms of child custody, an affair could still affect most states so long as it has a bearing on the best interests of the children.  In cases where an affair can be pointed to as harming the children and their custody or parenting time with either parent, an affair could still be looked at for a custody and parenting time determination.

Thus, parties who think an affair will not affect whatsoever are really missing the mark.  Many judges will indeed give little weight to an affair (even in states that allow it to be considered).   At the same time, an affair is not completely irrelevant in every case.  In some cases, an affair can ultimately impact the result of the case.  This is especially true where the affair had a financial impact on the marital estate.

If you are going through a divorce and are concerned about fault, Stange Law Firm, PC can help residents in Missouri, Illinois, Kansas & Oklahoma.  Contact us today to schedule an initial consultation at 1-855-805-0595.


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