Many people file for divorce after learning that their spouse has had an extramarital affair. If your spouse has cheated, it is understandable to want to bring a divorce action on grounds of adultery. However, doing so, while bringing the personal satisfaction of letting the court know exactly what happened, might end up costing you much more in time and money than simply seeking a no-fault divorce. Divorce is very personal, and usually carries a lot of hurt feelings, but you should discuss your filing options with a skilled divorce attorney before filing for divorce based on adultery.
The Illinois code mandates that property division in divorce cases cannot be impacted by marital misconduct (adultery). That means that even if your spouse did cheat on you and you can prove it, the judge cannot award you a greater share of marital property as a punishment to your spouse or as a reward to you. The only exception to this is if you can prove your spouse wasted marital property or assets on the third party engaged in the extramarital affair. In that instance, a judge can change the division of marital property. As an example, if you show that your spouse spent $25,000 from your joint savings account taking a lover on vacation, an Illinois judge could award you $12,500 or even $25,000 more in assets than you would otherwise be entitled to, since that money would be present as a marital asset if your spouse had not engaged in the adulterous affair.
The law against factoring adultery into the division of property is the same in regards to alimony, which is referred to as maintenance or spousal maintenance in Illinois. A cheating spouse cannot be punished by a judge by being ordered to pay alimony. That does not mean that you cannot get alimony if your spouse was unfaithful; it just means that the traditional factors for whether or not to award spousal maintenance will be considered, and the extramarital affair will not.
Committing adultery is also unlikely to affect the decision of a judge on custody matters. Illinois bases custody determinations on the ”best interests of the child” standard, meaning extra-marital affairs cannot be considered unless there is proof showing that it has a deleterious effect on the relationship with the child or children. At the end of the day, it is highly unlikely that a spouse’s infidelity will have a negative impact on a child custody dispute, unless some sort of egregious conduct involving the child is alleged.
Whatever grounds you file for divorce on you must prove, so if you file on adultery grounds, you must be prepared to prove that your spouse did in fact engage in an extramarital affair. It is imperative that you are able to offer evidence, such as cell phone bills, credit card statements, pictures, and anything else that proves adultery. If, however, you file for divorce on no-fault grounds, you do not have to prove anything. The only requirement is that you and your spouse live separately for a prescribed time period.
If your spouse engaged in an extramarital affair and you would like to seek a divorce, you should contact a competent and compassionate family law attorney. We can begin by helping you determine whether or not it is in your best interests to seek a divorce based on adultery grounds, as in cases where a spouse has squandered a good portion of the family savings. If you are located in the Chicago metro area, the Lake Forest area, or in Lyle and would like to discuss your legal options, please contact our offices today to schedule a courtesy consultation.
There are many factors to consider when contemplating divorce, and a pre-divorce planning session can help you begin to plan for a divorce. Please contact the professionals at the Women’s Divorce & Family Law Group by calling (312) 585-6604 or clicking here to schedule a consultation.
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