She Had An Affair - There's No Way She'll Get Custody!

If someone’s spouse had an affair, he may often fantasize about getting to punish her in court during divorce proceedings by never letting her see her children, or by “taking her for all she’s worth.” However, it may not work out that way, and it is good to be informed about the implications of adultery on the divorce settlement.


First, the adultery would have to be proven, unless she is willing to admit it. This in itself may prove difficult. Secondly, adultery can impact a divorce settlement in two ways:



The equitable division of marital property.


When it comes to alimony, the spouse who has committed adultery is not able to receive any spousal support or alimony from the other spouse. The second way in which infidelity has an impact, is that judges may find in favor of the innocent party when thinking about what makes for an equitable division of marital property. The division of property is supposed to be equitable, not necessarily equal, which means ideally that it is based in a concept of fairness.  


So if a marriage consists of a man and woman, with the man making more money, and the woman had an affair, the woman then is not allowed to receive any alimony or spousal support from the man. In this situation, if she had not had an affair, she may have been entitled to payments of alimony, so she could have lost out on a fair amount of money. Also, when a judge is deciding what amounts of an “equitable division of marital property,” he or she may have a tendency to leave more things with the husband, especially if the woman spent marital funds on activities related to her affair.


However, none of this impacts anything related to who has custody of the children. Just because someone has an affair and is not necessarily a good spouse, does not mean that they are not a great parent. Therefore, there is no rule that says that someone who has had an affair cannot have partial or full custody of his or her children after a divorce.


If this case was brought to mediation, it would be possible for you to decide what YOU want to do if your spouse has had an affair in terms of alimony. If for some reason, you still wanted to pay some alimony, you could decide to do that. Also, the two of you would be working together to decide the equitable division of property, not a judge that you have never met.