Divorce Courts Don’t Care About Cheating

By Maria Schwartz, Esq for DivorcedMoms.com

Most marriages where there’s been infidelity end in divorce sooner or later and a common reaction of the victim spouse is to want the cheater held accountable for their actions, to be punished for the pain and hurt they’ve wrought on the family. The harsh reality though is that with no-fault divorce laws throughout the U.S, divorce courts don’t care about cheating. The courts are there to administer the law not our moral code and attorney Maria Schwartz argues that recognizing this could save you a ton in time, energy and money:

infidelity, being unfaithful, divorce settlement

Like it or not, divorce courts don’t care about cheating

There she is…or he for that matter…seated in front of my desk with tears in his/her eyes and a mountain of papers.  Barely able to compose herself, she tells me, “He’s been cheating on me, and here is all the proof.”  Sure enough, there is the proof! And it is ugly.  There are email exchanges, text exchanges, graphic photos, credit card receipts, phone records, PI reports, and sometimes even “DNA” evidence…oh boy. I take a deep breath.

How do I explain that in the context of divorce, here comes the truth, NO ONE CARES.

I get it.  It’s awful, it’s painful, and it may indeed say a lot about the cheating spouse, but as a legal matter (in New York), it won’t make a difference in what you get in terms of divorce entitlements.  After gently empathizing with my client, I next deliver the news, “that all being said, as far as the divorce, your spouse can be swinging from chandeliers with his/her paramour, but as long as the children aren’t there, no one cares.”

There it is, the stunned look of disbelief…WHAT?  No matter how many times I deliver the news, it’s heartbreaking.  Here is my client, totally distressed.  She has inevitably lost at least ten pounds from the stress, hasn’t slept for days, and probably spent at least $5,000.00 on a private investigator.  What’s even worse is that she has probably, and unbeknownst to her, illegally obtained “evidence” which she couldn’t use in court anyway.

So what now? Well, first off, stop the investigation immediately.  It has no use or purpose other than to upset you.  You have plenty of evidence and there is no need to go any further.  All this will do is upset you even more and interfere with your ability to make good choices for yourself.  I know that it is hard to do.  It becomes almost an obsession.  However, for your own sake, I urge you to stop because it really does not make a difference, and it keeps you stuck.  About 15 years ago I had a client whose husband was cheating on her.  She found out in the most awful of ways…in person.  Yes, she came home to a stranger in the marital bed.  It can’t get worse than that.  Did you see the movie Silver Linings Playbook? If you haven’t, I suggest you do.  It’s a great movie and it’s about a husband who discovers his wife is cheating on him; how he becomes obsessed with it, and it almost ruins his life.

Anyway, back to my poor client.  She was young, smart, highly educated and beautiful.  She was also very trusting and naïve.  She literally suffered a nervous breakdown and could not go to work.  It was a very short marriage, just under two years.  There were no children and no assets.  Other than get her divorced from this cheater, what else did she want? More importantly, what else could I fight for? I was so moved by her plight and believed that having lost her job because of her husband’s cheating, that he should provide some spousal support while she got her life back in order.

The Husband’s attorney thought I was out of my mind, inexperienced, and all but laughed at my proposal that his client pay my client’s rent for a year.  We went to court.  We had a conference with the Judge.  Guess what? The Judge agreed with the Husband’s attorney, told me my demand was ridiculous and that my client had to “get over it.”  I was crushed.  I went back to my client to tell her that our demand was too high (translation, as in 100% too high).  I will never forget the look of disbelief and disappointment in her eyes.  Persistent young rebel that I was, I went back with a slight modification of my proposal.  The attorney basically laughed at me, and we went back to see the Judge.

At that point the Judge growing annoyed with my persistence and my client’s “hysteria” made a suggestion for a proposal.  When my client would not agree, the Judge told me that my client was “an @# idiot.”  Uh oh.  Now that was just way out of line.  With my heart banging out of my chest, and my hands shaking, I said to the Judge, “I think that perhaps we should go into the courtroom and I will ask that your honor recuse himself.”  He shot me a look.  I added, “respectfully.”  The Judge then made a “final” proposal and told opposing counsel that he was to make sure that his client took the deal.  We accepted.  It was a moment of vindication for my client, and for me, one that I still haven’t forgotten.  That Judge by the way is no longer a judge or lawyer.

Other than that, and maybe one other which would make this blog just way too long (the Husband was cheating on his Wife with her sister), cheating is NOT a factor in divorce, and people spend way too much time, energy and money obsessing over it.  You are just too good for that type of life waster!

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