Family Law

How Adultery Can Affect Property Division

Depending on your state, infidelity may impact property division in a divorce a lot, or a little. This article explains when a cheating spouse may get a smaller share of the marital assets.
By Aaron Thomas, Attorney
Updated: Jul 19th, 2018

Infidelity is a contributing factor to many divorces each year. Adultery breaks down not only marriages, but the trust between spouses in all aspects of their marriage, including finances. If you’ve had infidelity in your marriage, you may wonder whether a court will punish the unfaithful spouse with a smaller share of the marital assets upon divorce. This article will explain how adultery may affect property division in your divorce. If you have additional questions after reading this article, please contact a local family law attorney for advice.

Property Division Generally

There are two frameworks for how judges divide marital property in a divorce, each in use in different jurisdictions. There are equitable division states and community property states. Generally, in community property states, courts will divide marital property equally between the spouses. In equitable division states, judges will attempt to divide marital property fairly, which doesn’t necessarily mean that the property will be divided 50/50. In equitable division states, courts can consider many factors when deciding how to divide assets and debt., such as each spouse’s earning ability or contributions to the marital estate.

Even in community property states, however, the court can determine if one spouse has depleted the marital estate by moving money around or transferring assets. For example, if a spouse gave a lover $10,000 from a marital account, or spent that money conducting an affair, a judge could consider this when dividing property between the spouses.

When a Cheating Spouse May Receive a Smaller Share of the Estate

The extent to which a judge can consider infidelity when determining how to divide marital property varies from state to state. However, courts in almost every jurisdiction will pay close attention to situations where a cheating spouse has used a substantial amount of the marital estate conducting the affair, buying gifts for a lover, and/or paying for a hotel or other accommodations.

For example, when a spouse transfers marital assets into a paramour’s name, the court has the power to either order the return of those funds, or decrease the share of the estate for the unfaithful spouse. Similarly, if a spouse spent large amounts of money on the affair, the judge may punish that spouse when dividing assets. For example, if a spouse paid for a paramour’s apartment or vehicle, or spent money on lavish vacations, a judge will almost certainly decrease that spouse’s share of remaining assets.

How much a court considers a spouse’s adultery when dividing assets is unlikely to be a formula and can vary from state to state, county to county, and even judge to judge. An experienced, local family law attorney may be able to help you determine your judge’s tendencies when it comes to the impact adultery has on division of assets. Some courts take the view that adultery is a completely separate issue from finances, and an affair, so long as it didn’t substantially deplete the marital assets, shouldn’t affect property division. Other judges will punish the cheating spouse with a substantial reduction in assets received in the divorce.

Adultery and Property Division Negotiations

The above section talks about how your states’ laws might impact property division if one spouse has been unfaithful. But there’s another aspect to adultery and divorce besides the black letter law: the emotional impact.

The vast majority of divorce cases settle prior to going to court—as much as 90 or 95 percent of divorce cases end in an divorce settlement agreement before trial. When a couple divorces because of one spouse’s infidelity, however, the emotions each spouse is feeling will almost certainly affect negotiations. The spouse who has been cheated on may feel as if the cheating spouse should be punished financially, and may want a larger share of the marital assets. The unfaithful spouse may feel guilty, and more likely to concede on some of the financial issues.

There’s also the issue of a spouse not wanting to have his or her infidelity displayed in an open courtroom if the case goes to trial. Particularly in smaller jurisdictions, an unfaithful spouse may accept a smaller share of the marital assets in order to avoid public embarrassment. In some cases, an affair may cause someone to lose not just their reputation, but also their job. If a judge finds the affair relevant and admissible at trial, the paramour could even be dragged into the litigation. Even if your state law doesn’t allow a judge to consider infidelity when dividing assets, the fact that the affair may be discussed at all could prove to be a powerful negotiating tool.

If you have questions about how infidelity in your marriage may impact your property division in divorce, consult with an experienced family law attorney in your area.

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