Infidelity: Seven Tips to Help You Get Money when your Divorce is Caused by Affair
Of those who found themselves wincing at Silda Spitzer as she stood by her cheating husband, former New York Gov. Eliot Spitzer, were many who’ve felt the sting of adultery. A University of Chicago study found that 25 percent of all marriages are affected by adultery. If a spouse divorces a cheater, can they get more of the marital assets? Maybe.
While all’s fair in love and war, that’s not necessarily so in divorce court. “In California, adultery doesn’t make a bit of difference in division of property… judges don’t get into it. Often, people are very disappointed to hear that,” said Nordin F. Blacker, president of the Northern California Chapter of the American Academy of Matrimonial Lawyers. However, all is not lost.
“You can put yourself in a better position and bargain for more favorable terms if you know how to go about it,” said Ruth Houston, author of Is He Cheating on You? “ 829 Telltale Signs“. Here are seven steps to negotiating for a better settlement:
1. Do your homework.
Don’t wait until the cheater cleans out the bank account and leaves or you’ll lose your chance to gain the upper hand. “If you suspect that something might be going on, be smart and quietly go about getting some of the details,” Houston said. According to a recent survey of the American Academy of Matrimonial Lawyers (AAML), 88 percent of the nation’s top divorce attorneys have seen an increase in cases using electronic data as evidence during the past five years.
“Technology is having a big impact on the way that divorces are now conducted,” said James Hennenhoefer, president of the AAML. “Many people still don’t realize how much evidence can be gleaned from personal electronics ranging from computers to cell phones and GPS devices. In the Internet age, there is often a very clear trail…”
“E-mail is the most commonly used form of technological evidence, with 82 percent citing it as the main source. Text/instant messaging and Internet browsing history tie for second with seven percent each, while one percent of the respondents cite data taken from GPS systems. The survey also reveals that wives are more likely to make use of electronic evidence. Once you have evidence, confront your spouse. Letting your spouse know you’re aware of their affair may make the difference between being dumped and negotiating for more favorable terms,” said Houston.
For a spouse facing the loss of a marriage, working a deal where infidelity is kept quiet in exchange for a larger settlement may make sense for both parties. For example, the U. S. military considers adultery unacceptable conduct. If a soldier commits adultery, he/she can be charged with Article 134 of the Uniform Code of Military Justice. If found guilty, the adultery will reflect adversely on their service record.
“If you do decide to pursue this avenue, you will have to keep quiet as you are learning about the affair, otherwise you will lose your bargaining power,” said Houston. “Also, proving adultery isn’t easy. Even if you have a video of your husband and his secretary going into a hotel room, that doesn’t mean you’ve proven anything,” said Thomas Wolfrum, a certified Family Law Specialist who is a Fellow of the American Academy of Matrimonial Lawyers.
2. Find out if you’re in a fault/no-fault state.
There are fault grounds such as adultery, physical cruelty, mental cruelty, habitual drunkenness and desertion; and, there are no-fault grounds such as “irreconcilable differences” or living separately for a time.
Oklahoma introduced no-fault divorce in 1953. But, the idea that you could get a divorce without blaming someone didn’t get traction until 1969, when California abolished the old divorce law and replaced it with dissolution based on irreconcilable differences. By 1985, every state had adopted no-fault divorce.Some no-fault states do allow you to claim fault, penalizing the at-fault party, when deciding who pays attorney’s fees or who will get what property. Some no-fault states also consider fault in spousal support.
3. Know if you live in a community property or equitable distribution state.
Even if you don’t live in an at-fault state, you still may be able to get more of the marital estate, depending on if you live in a community property state or an equitable distribution state. In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), fault is not considered in division of property. However, fault does get in the back door. Domestic violence is a factor that affects child and spousal support. “It’s a kind of fault that could be used to increase the amount or length of time of spousal support,” said Wolfrum.
“All the rest of the states are equitable distribution states. In these states, the judge has discretion to decide how the property should be divided and the court can consider a number of factors,” Wolfrom said. They include: length of marriage, age and health, earnings, the ability of parties to support themselves, their education and who paid for it, property owned and inherited during the marriage, the locality of that property and their future earnings ability.
4. Ask for spousal support to get back on your feet.
“If you’re working through mental health issues after the affair, you may want to have that factored into the settlement. You can say, ‘I’ve been married for 20 years and I thought was he was faithful. Then, I found out he was having not just one affair but multiple affairs. I need at least a year of therapy and I want child support and alimony computed on zero income for that year because I’m devastated and emotionally unable to work’,” said Wolfrum.
5. Consider an “Alienation of Affection” lawsuit.
Stealing a spouse is a form of personal injury, which can be compensated. Depending on the state, injured spouses may be able to file “Alienation of Affection”, “Criminal Conversations” or “Intentional Affliction of Emotional Distress” lawsuits against the other wo/man. Even if you don’t go after the paramour, raising the possibility may get you a better deal from your soon-to-be ex.
“Alienation of affection” is a term that covers interfering with an affectionate relationship. Since 1935, the Alienation of Affections tort has been abolished by most states as an archaic form of revenge. However, if you live in a state where the law is still on the books (Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota and Utah), you may be able to receive some financial compensation. More than 200 such cases are filed annually in North Carolina (where former presidential candidate John Edwards resides), which protects marriages from third party interference.
In an alienation of affection lawsuit, you don’t have to prove the other wo/man had sex with your spouse, according to Haas McNeill & Associates, a law firm in North Carolina: “The exclusive right of sexual intercourse is not the right protected in this type of case. It’s the actual affection between spouses that’s the right protected.”
According to the Legal Match Law Library, “It’s often not necessary to show that the third party set out to destroy the marital relationship, but only that he or she intentionally engaged in acts that likely would impact the marriage.”
How much can you get? According to Gailor, Wallis & Hunt, a law firm in Raleigh, North Carolina, “The potential size of a favorable verdict may vary depending on multiple factors…” Those include: length of the marriage; egregiousness of the defendant’s conduct; the conduct of the plaintiff during the marriage; damages such as medical or psychological treatment costs and loss of income. “Not every case of alienation of affections or adultery will merit bringing a claim.”For those who win a claim, the reward — which can be both punative and compensatory — can be substantial, the firm of Haas McNeill & Associates reports. In 2001, a Greensboro, N.C., jury awarded $2 million to a plaintiff. Another jury awarded $1.2 million in 1997 in a Forsyth County case. Other awards include $1 million to an Alamance County woman and $243,000 to a Wake County man.
There is a three-year statute of limitations for alienation of affections claims. The clock begins ticking when you separate. The court usually views anything after that time as irrelevant. If your spouse starts dating before the divorce is final, that doesn’t count. However, if your spouse continues a relationship that broke up your marriage, that can be evidence.
Unlike alienation of affection lawsuits, criminal conversation lawsuits are about the other woman or man having sex with your spouse. You don’t have to prove that the intercourse changed the way your spouse feels, you just have to prove that sex between your spouse and the other wo/man occurred while you were married.
There are no real defenses to a claim of criminal conversation. According to attorney Lee S. Rosen, a board certified family specialist and founder of the largest divorce firm in the Southeast, “It is not a defense that: the defendant did not know the other person was married; that the person consented to the sex; that the plaintiff was separated from his or her spouse, that the other person actually seduced the defendant; that the marriage was an unhappy one; that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage; that plaintiff had mistreated the spouse; or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff consented to the illicit intercourse, but the defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.”
Since most states have abolished alienation of affections laws, wronged spouses also have tried to recover damages under “Intentional Infliction of Emotional Distress.” To bring a successful claim, the victim must prove: conduct that is intentional or reckless; conduct that is extreme and outrageous; the wrongful conduct caused emotional distress; and the emotional distress must be severe.
6. Know the other wo/man’s identity.
Before you can go after the person your spouse cheated with, you have to know their identity. Ruth Houston offers the following three tips to find out.
- Reverse phone number search: “If you find unfamiliar numbers on your caller ID, cell phone bill, programmed into your spouse’s cell phone, or scribbled on scraps of paper or the back of business cards, you can do a reverse phone number search to find out whose number it is,” said Houston. For a fee, this service also lets you run background checks on any names. For more information, go to http://get411now.phonesrch.hop.clickbank.net/.
- Reverse e-mail address search: “If your spouse is sending or receiving e-mails from someone you don’t know and you want to find out who a certain e-mail address belongs to, you can run a reverse e-mail search with the largest e-mail search database on the Internet,” said Houston.This is the same service used by law enforcement. For more information, go to http://get411now.newbie8888.hop.clickbank.net/.
- Background check: “If you have the name of the person(s) you think your spouse is involved with, you can run a background check to find out more information about this person including: their address history; their work history; whether they’re married, single or divorced; whether they’ve ever committed a crime and more,” said Houston.
7. Hire a good lawyer.
“Getting a greater share of the marital assets requires a skilled lawyer. Start with attorney from the American Academy of Matrimonial Lawyers because they noted for excellence in this area and many have passed a second bar exam to become a certified family law specialist,” said Wolfrum, who also recommends you get a copy of IRS Publication 504: Instruction Booklet for Divorce.
Finding out your spouse has cheated unravels your world. Rather than feeling victimized, Houston encourages betrayed spouses to protect their rights. “Act decisively and you’ll feel empowered, rather than victimized,” Houston said.
