How does cheating affect a divorce? It’s a question we get asked often, as it’s a situation that unfortunately happens quite frequently. We have a lot of literature on this site on this topic already but this article will specifically focus on what happens to the partner who has actually engaged in the extra marital affairs – the one who comes forth and confesses, “I cheated”.
No Fault Divorce
First, all states now have no fault divorce laws, meaning that a fault ground is not needed to prove or obtain a divorce. In NC, to obtain a divorce, the complaint just needs to allege that at least one of the parties has resided in the state for at least six months prior to filing the action and that the parties have been separated for at least one year. There is not a requirement to allege any fault grounds like abandonment, adultery, cruelties, etc.
Before states had no-fault divorces, parties would need to allege and prove that there was a fault ground. California was the first state to adopt a no-fault divorce policy in the late 1960’s. Currently, all 50 states have some type of no fault divorce.
Because of this, proof or evidence of an affair is not required to get divorced. One can divorce legally with no wrong doing on either spouse’s part. Despite that, there are some issues that will arise for adulterers if there is proof of their wrong doing. Let’s focus on the aspects of a divorce that an affair does not typically have an impact on first.
Affects on Child Custody
Adultery typically does not affect child custody proceedings. The court/a judge should rule with what is in the child/children’s best interest – which really means that having a boyfriend or girlfriend should not factor into a parent’s custody and or visitation schedule.
However, having stated that, the innocent spouse/the non-cheating spouse may feel and try to demand that the paramour should not be around the children. Judges may agree, but usually they will only agree with a stipulation that the paramour should not have contact with the minor children until the divorce is final. After that, it
Parents may agree that there should be limitations to exposure to a boyfriend or a girlfriend in a separation agreement, but that is for both parents to determine for themselves. Beginning to date a new partner before a divorce has been settled is an afront to that person’s spouse, but does not mean they are an unfit parent. To state it another way: having a new partner does not mean a parent should not have access to see his or her child or children.
Affects on Child Support and Property
Similar to custody, adultery will not factor into child support paid nor received. In fact, it factors in even less. Child support is determined by the parents’ salaries and incomes, how many minor children are involved, and the custody/visitation schedule. Thus, the fact that one parent was unfaithful does not get computed in a child support equation – a parent’s unfaithfulness has no impact whatsoever.
Infidelity should also not factor into property division. The equitable distribution laws in North Carolina presume that marital assets are to be divided 50/50. The only limited circumstance wherein cheating might factor into property division is if martial assets were used in or spent on the affair. However, unfaithfulness alone does not mean that property will be divided in an unequal manner; the presumption will always be that the martial property will be divided equally.
Where Adultery Might Factor In
A spouse being unfaithful may be a factor in alimony/spousal support, but not in the way many parties think.
In North Carolina, a dependent spouse may receive spousal support if the other spouse is a supporting spouse. Alimony may be appropriate if the parties have been married for many years and are therefore older and if one spouse financially supports the other. A spouse may receive alimony if he or she is lacking current economic skills and training.
This is all to say that with spousal support, similar to child support, finances are the main issue – not if the supporting spouse cheated or not. But, if the dependent spouse has engaged in adultery, that adultery can be a complete bar for alimony receipt. This protects the supporting spouse from funding a cheating spouse’s lifestyle post-divorce (especially in instances where the separation is due to the infidelity).
An affair does not automatically mean that the faithful spouse will receive alimony, but it can be and is often used as leverage in the process of divorce negotiations – especially when the cheating spouse is the dependent spouse, as seen above.
Unexpected Impacts of an Affair
Divorce is a difficult process and when there is an affair, the emotions of shame, embarrassment, and hurt tend to complicate everything not just for the couple involved, but for those around them as well.
Yes, those closest to the couple are impacted. Children must adjust to a new way of life with their parents. Family and friends must make decisions about who to support and how to do so. However, there is one other person who can suffer legal consequences for an affair – the paramour.
Penalties for the Paramour
In a related matter to the divorce itself, the paramour to the married, adulterous spouse is exposed to a possible action/lawsuit if the non-cheating spouse wishes to sue them. This suit is called alienation of affection and/or criminal conversation. There are just a handful of states that allow an innocent spouse to sue the paramour of the cheating spouse. North Carolina is one of them that allows this type of lawsuit and it comes with a statute of limitations of 3 years.
These types of lawsuits are quite difficult and contentious. In addition to statute of limitations (ie a suit isn’t possible if a spouse finds out about the infidelity or criminal conversation 4 years after it took place), there are very specific factors that must be proven in order to move forward with the lawsuit against the paramour.
Furthermore, the lawsuit will only be profitable if the paramour has money and assets. To avoid the embarrassing public exposure, many parties will use the possibility of such a lawsuit as a negotiating tool, which in turn, has an economical factor and sometimes much better outcomes for both parties.
The Emotional Affect
In addition to the economical impact of adultery, there is the emotional impact. A cheating spouse needs to realize that exposing his or her new love to the family will likely result in emotional upset to the other parent/spouse and children, regardless of their age. There is the emotional toll that the innocent spouse will likely suffer, and this cost may bleed into interactions between the spouse and the children.
It is naïve to think that there will be no emotional consequences to the innocent spouse. As obvious as that sounds, the cheating spouse may be so invested with his or her new relationship that he or she overlooks the potential harm that the innocent spouse and family are enduring. It is recommended that a party take time before introducing a new partner to family and friends. Children should not be forced into meeting a new partner until, at the very least, their parents’ divorce has been completed.
Moving Forward
So we know what consequences someone who has committed adultery may face in a divorce. Sometimes the paramour can even face more dire consequences than the spouse who cheated. What comes next? When the separation period is over and the divorce has gone through, what can be done to heal from the affects of an affair?
First, move through the grief. Whether the faithful or the unfaithful partner, the end of a marriage is never easy. Faithful partners deserve the time to recover from the harm done to them and to firmly accept that the infidelity wasn’t their fault. Unfaithful partners need time to process the end of the relationship, as well as resolve the issues within their lives that lead them to act on their temptations or believe adultery was the answer to their problems.
Next comes trust. Partners who suffered from their spouse’s cheating should surround themselves with their support system and lean on the people they know are safe to trust so they can learn to trust a new partner again – one who will not hurt them in the ways their previous partner did.
As for the spouse that engaged in the affair, their course of action is very similar. While it does happen, most partners don’t cheat because of lust or an inability to resist when someone who isn’t their spouse makes a move. It happens more frequently when there is a breakdown of communication between spouses or unprocessed childhood trauma, leading the unfaithful spouse to feel that they can’t trust their partner, and further leading to a justification that it is ok for them to hide even more from them.
Final Thoughts
Ultimately, the emotional wounds deserve to be healed. If they go unaddressed, more people will be hurt, whether future partners or current family members. Children can come out of the impacts of an affair more well-adjusted than most think, but only if both parents work on themselves and heal their pain while working to provide a safe, loving environment for them.
Finally, reach out if you need help. Whether to your support system or to an attorney, your concerns need to be resolved, whether emotional or legal. If your top concerns are legal right now, give us a call at 919-787-6668. We’re here to help you move through this.
