One of the most common questions asked by clients of Shemtob Draganosky Taylor is: How does my spouse’s infidelity factor into my divorce? She/he doesn’t get custody of the kids, right? I get all of the assets and lifetime alimony, right? The answer is that, while adultery can be relevant, it often has little impact on a divorce in Pennsylvania.
First, let’s dispel some common myths. If you cheat on your significant other, you do not lose custody of the kids. If you have an affair, you do not have to give the other spouse all of your assets or pay them lifetime alimony. In most circumstances, as hard as it is for many to believe, adultery plays no role in the process of divorce.
Pennsylvania is both a fault and no-fault state. The vast majority of cases are no-fault, meaning that the parties can obtain grounds for divorce without assigning blame to the other, but instead by agreement or by being separated for a period of time. That said, the option still exists for a spouse to obtain grounds for divorce based on adultery if they want; hardly anyone does, though, as it takes more time and litigation (read legal fees) and judges tend to frown on wading through a sea other people’s dirty laundry.
Marital misconduct, which includes adultery, is a relevant factor in deciding whether a spouse should receive alimony. For that reason, if an alimony claim is raised, even in a no-fault divorce, adultery would be relevant; however, in practice it rarely results in much of a difference. Adultery can be used to prevent a cheating spouse from receiving alimony or to bolster an innocent spouse’s claim for alimony.
Affairs generally have no impact on child custody disputes. Judges will look to whether the girlfriend/boyfriend has a criminal past or is a danger to the children if they are around the children. Cheating on your spouse might make you a bad husband or wife, but it does not disqualify you from being a parent.
When adultery is relevant (like when an alimony claim is raised), proving it can be pursued and sometimes used as leverage to resolve a case. Often when one party is questioned under oath about whether they cheated, with whom they cheated, etc., cases all of the sudden seem to settle to the innocent spouse’s advantage.