Myth #7 – My spouse cheated on me during our marriage so I get more money in the divorce.
When it comes to affairs of the heart, most of us seek that special someone to spend the rest of our lives with.
But, when it comes to extra-marital affairs, stepping out of your marriage will often bring the marriage to an abrupt end.
If you are the spouse that has been cheated on, you may think that at least you can console yourself with your belief that you will be “compensated” financially for your spouses’ wandering eye. But, despite popular opinion, this will not be the case.
As a busy matrimonial attorney I am often faced with clients who are surprised that their spouse’s adultery during the marriage will not be punished financially. Spouses often come to my offices armed with their “proof” and wanting to rely upon adultery as the basis for the divorce so as to ensure they receive a greater share of the financial pot.
During these difficult and stressful times when bitterness and anger are often at the fore, the wronged spouse wants to hear from their lawyer that they will get a greater proportion of the assets because of the affair. However, it is only conduct which is “gross and obvious” so that it would be “inequitable to disregard” which may affect a financial award. In all but the most exceptional cases conduct, including adultery, will not impact the division of assets upon divorce.
The reason for this restrictive approach is that when a marriage breaks down, the Court is focused upon achieving fairness as between the parties. In most cases the Court will look upon the parties as partners who contributed equally to the marriage whether that be financially, as a parent or as a home-maker. The cases make clear that the Court generally will not seek to determine who the better spouse was or who was to blame for the marriage breakdown when determining the financial issues. The focus will be on dividing the financial assets to meet the future needs of the parties rather than on past misconduct.
As a consequence, the Court has set a fairly high bar as to the type of conduct that will be taken into account when determining financial issues. The limited examples where misconduct has affected a financial claim include very serious assaults, murder or aggravated sexual offences. The reported cases of conduct affecting financial settlement are extremely rare. Lesser conduct may, however, be relevant to the division of the assets in circumstances where the conduct has impacted on the parties financially.
For example, if a husband has lavished his new girlfriend with expensive gifts then there is an argument that such profligate spending should be taken into account when determining the financial division by the Courts and that this money should be put back into the pot. That does not mean a spouse has a free pass when it comes to infidelity. Affairs will invariably cause great hurt and distress and can often have fatal consequences for a marriage. Adultery remains a basis upon which a spouse can obtain a divorce, but divorces based on the grounds of adultery can often be more costly and more acrimonious.
The decision whether a marriage has broken down irretrievably is a decision for the client and is very much an affair of the heart. Once a client has made this determination, a good matrimonial attorney should provide advice on all options for dissolving a marriage.
When necessary, that advice should include guidance not only in financial matters but also on how to preserve relationships moving forward, particularly when there are children involved.
Adam Richards is a Director of Marshall Diel & Myers Limited and Member of the Matrimonial and Family Team at Marshall Diel & Myers Limited. He may be contacted at firstname.lastname@example.org or 295-7105 .
This column is for general guidance only and does not constitute legal advice.