Over half the divorce cases I handle involve adultery, and over the past decade I have represented a fair amount of clients on both sides of this issue. My experience is that it is not the reason for the break down of the marriage, but rather a symptom of a larger issue that has gone unaddressed for some time.

Those that have committed the transgression typically fall into 2 distinct camps: 1) there are those who feel terribly guilty, and as a result may want to be far more generous than what would be considered reasonable from a legal perspective, and 2) those who feel that it was not at all their fault, this is what they were driven to do. Either way, with the person that has committed the affair, it is simply my job to explain how this may impact his/her divorce case, the process ahead, etc. Emotionally, the adulter is usually in a far better place than his/her spouse in the sense that this person has already moved on from the marriage for they have been detached for a while, and now they are usually relieved to end this dysfunctional charade.

Dealing with the betrayed spouse, however, is far more complicated. Often times, they have just learned the news and are grappling with a million unanswered questions, mainly: 1) when did this start? 2) how did this happen? 3) where did it happen—was it within the home, at the office, or in a hotel? and 4) why? The person uncovering an affair is usually struggling emotionally, and therefore tends to present at the initial consult a bit unfocused, if not a complete basket case, and basically anything in between. The hardest thing to explain to the person that has been betrayed is that (in my opinion) adultery may not have the impact they think it will have on their case.

Divorce court is not criminal court, we are not here to punish the perpetrator of this offense. Judges and lawyers are so used to seeing some element of adultery in divorce cases, that it does not have the sensational affect it might have outside the legal arena. In my world, we see adultery as a symptom of a larger problem; we may actually be able to see how both people are at fault, we have come to accept that an “exit affair” is just the final excuse to leave after years of misery, and we not only distinguish between post-separation adultery versus adultery while the couple is still together, but also whether it was just an “emotional connection” versus actual penetration, sadly the latter being the one that actually counts in court while the former is the one that most wronged spouses want to be vindicated for in court. Ultimately, courts simply tend to focus on whether marital funds were spent to fund an extramarital relationship, and not much weight is given, if any, to the emotional impact on the spouse that endured this humiliation, who will probably struggle for quite sometime to rebuild his/her self confidence and trust in others.

The trust issue raised because of adultery definitely impacts the litigation of a divorce—and clients need to understand that there is a cost associated with trying to have the attorneys answer as many of their questions as possible, even when the relevance may not be significant, ie: sending subpoenas to email providers, culling through 10 years worth of credit card receipts, deposing work colleagues that may or may not have known about the affair. The most painful reality is that at the end of the day, the court may not be able to compensate someone who dedicated 20 faithful years to his/her family, only to have the other spouse run off with a younger model. The best advice I can give these clients is to seek counseling immediately, so that they can air their feelings, start the healing process, and hopefully get their emotions under control so that they can make sound financial decisions with respect to their legal divorce (which is different from the emotional divorce that may not come until much later.)

I am reminded of a quote I found in a fortune cookie not long ago: Love is like War, so easy to start, so difficult to stop. But I do see it as my job to stop the war, and not feed into the anger that my clients are feeling. People need a reality check– a voice of reason. Sadly, life is not always fair, and the courthouse is not this great panacea that will make all things right. What may be morally correct, is not necessarily legally required.

At the end of the day, what most people want when a significant relationship is dissolving is an apology, but that is not somethign anyone can mandate, and unfortunately saying “I’m sorry” seems to be dwindling from most people’s vocabularies these days.


By Regina A. DeMeo