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Infidelity & Divorce: The Rules Have Changed

 More than half of all mothers in the United States under thirty are unmarried. Social scientists offer several theories for this trend. Family law experts often tout significant changes in the law that gives parents and their children equal rights regardless of marriage. The fifty percent divorce rate of the baby boomer generation holds sway for others. But my friend Tricia has a different idea: “We’re just tired of all your bullshit.”

Ouch. Men are aware of our original sin of making up Fake News that it was Eve who strayed first with the forbidden fruit. We rationalize behavior of our brothers by blaming biology. While it is true that the laws of nature predate the laws of marriage, the fury of a woman scorned has its roots in those same laws of nature. I was a romantic college freshman far from my Missouri home when I first heard a woman say in earnest, “I’m going to marry the man who is least likely to cheat on me.” Whither romance? No, but fellas: More women are cheating, too. And they’re usually better at hiding it.

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Clients often ask me, ”Will having an affair effect my divorce?” It’s a good question nowadays, given the amount of misinformation online. It’s fair to wonder if being a faithful spouse matters at all to anyone anymore (other than your partner). From the White House to the Governor’s Mansion in Missouri, the sanctity of marriage has taken some hits lately. Back in the Bill Clinton days, parents hoped their children didn’t fathom the full meaning of “the stain on the blue dress” mentioned daily in the news. What effect will hourly broadcasts of “The President’s lawyer paid $130,000 to a porn star” have on our children?

I have news for everyone: An affair might matter. Spoken like a lawyer, I know. But then, I am a lawyer. And a man. (Forgive me twice.) Here’s the law in Missouri about being unfaithful: If cheating significantly burdens your spouse, you might pay a price when the court divides marital property or awards maintenance (what used to be called alimony).

What? How can cheating not burden your spouse? Well, if he never finds out about it, how can he be burdened? This offends a number of marriage counselors, who like to advise that before a marriage can be repaired, spouses must come clean with each other. Perhaps, but some marriage counselors have recently changed their thoughts on this issue; and many divorce lawyers quietly believe what unfaithful spouses have known for quite awhile: What she doesn’t know won’t hurt her.

The “Life is Short. Have an affair” website Ashley Madison made the news several years ago when its database was hacked. Millions of Americans were poised to have their secrets revealed to the world, let alone their spouses. It didn’t matter. The company is back up and running, stronger than ever. Biology finds a way (apologies to Jurassic Park).

“So how much is it going to cost me?” What’s the price for an affair? For years I practiced in front of an older mid-Missouri judge who used this maxim: “10% for every woman other than your wife.” Meaning, cheating would cost you ten percent of the marital estate when dividing property. That can be pretty steep. Or not, depending on the property; and also perhaps depending on the other woman. As the economist Milton Friedman said, “There is no such thing as a free lunch.”

Of course there is no “ten percent” rule in Missouri or anywhere else. What the old judge was saying was that there are consequences for conduct. This is a pillar of our justice system. Some people are surprised that this figures into their divorce: “I thought Missouri was a no-fault state.” It is a no-fault state, but that doesn’t mean your bad conduct won’t have repercussions. The term “no fault” in Missouri refers to the ability to get a divorce, regardless of fault. It does not mean that once you tie the knot, you are free to misbehave.

Infidelity raises profound questions about intimacy.

-Junot Diaz

Divorces happen for a number of reasons. Most often affairs are the result of other failures; and even sometimes they occur in mostly happy marriages that do not result in divorce (and where people value discretion). I have handled cases where an affair has destroyed a marriage and devastated a spouse. In these rare instances, we can obtain a disproportionate property division to compensate (financially) for bad conduct, as well as an increased maintenance award. But most problematic cases involve other forms of bad conduct, such as substance abuse or serious financial misconduct. (Judges do not like unfaithful spouses spending a lot of money on a lover.) Sadly, the worse cases involve emotional and physical abuse – which should never be tolerated by a spouse. (If you are being physically abused LEAVE NOW and speak to a counselor or therapist as well as an attorney. It will NEVER get better without significant intervention. I will discuss this in a subsequent blog.)

Thirty-three years of family law has taught me quite a few things. One is this: Of the marriages that end in divorce, most have involved infidelity. But rarely has infidelity caused the divorce. The law recognizes this. Good family court judges understand this. Divorce lawyers know this. We’re human, too.

-Dan Pingelton