Can infidelity influence divorce outcomes? Indirectly, it might, especially with dissipation of assets, spousal maintenance, child custody, and emotions that affect the ability of the spouses to trust each other or cooperate. For example, with dissipation of assets in DuPage County, IL, a spouse may have a claim to marital funds the other spouse spent in service of an affair.
Illinois is a no-fault state, but infidelity may impact many aspects of your case. Call Erlich Law at (630) 538-5331 for guidance on protecting your rights.
How Does Infidelity Influence Divorce Outcomes in Illinois?
Illinois has used a no-fault divorce framework since 2016, with irreconcilable differences being the sole ground for divorce. It means neither spouse has to prove wrongdoing on the other’s part and that the marriage has broken down beyond repair.
With no-fault divorces, issues such as adultery do not directly affect the decisions judges make about property division, spousal support, or child custody. However, there can be many indirect effects.
Child Custody
An affair might have created instability, exposed the children to inappropriate behavior, or resulted in neglectful parenting. Any of these could influence courts’ custody decisions, with courts required to make determinations in the children’s best interests.
For example, if a parent leaves the children home alone to spend time with an affair partner, the court may view this as the parent failing to prioritize the children’s needs. Similarly, if the new partner has a history of substance abuse, domestic violence, or criminal activity, the court may consider whether being around this person puts the children at risk.
These concerns are especially relevant if the parent is frequently with the new partner or if they live together. In such situations, the court may decide to limit that parent’s parenting time or decision-making authority.
Emotions and Spousal Negotiations
Many spouses try to work out issues between themselves without court intervention. This approach can be less stressful and save time and money. It often empowers the spouses to make decisions customized for their families.
Infidelity still can influence divorce outcomes in these situations, often by making it harder for one spouse to trust that the other is cooperating in good-faith negotiations. Emotions may run high, with a parent (or both parents) being less willing to compromise on parenting time or property division. Even in uncontested divorces, resentment can make it hard for the spouses to reach a fair agreement without guidance from a divorce attorney.
Does Adultery Impact Property Division and Alimony in an Illinois Divorce?
Adultery can affect both property division and alimony, especially if one spouse dissipates marital assets.
Property Division
Marital property should undergo equitable distribution in an Illinois divorce, with equitable meaning fair but not necessarily equal. Considerations include the length of the marriage, the spouses’ individual contributions to the marriage, and their financial situations.
Adultery itself does not directly affect the division of property, but it may do so indirectly. If a spouse dissipates marital assets (using marital assets or spending marital funds for nonmarital purposes, such as financing an affair), the court could compensate the other spouse accordingly. If a spouse used joint bank account funds to pay for trips with an affair partner, the court might require reimbursement to the marital estate.
To prove dissipation, attorneys may have to request financial records such as bank statements, credit card bills, Venmo transactions, and receipts that show odd spending patterns. Large withdrawals, unexplained purchases, or expenses that seem to benefit only one spouse may support a dissipation claim. Subpoenas may be necessary to find hidden spending or hidden accounts.
Dissipation does not always involve spending money. It can include using marital property for reasons unrelated to the marriage. If one spouse uses the family car to frequently visit a new romantic partner, or gives away valuable items from the home out of spite, those actions may be dissipation.
Some types of infidelity involve brief, one-time encounters, while others may involve lengthy affairs. Attorneys can work with you to create timelines and when questionable financial activity may have occurred.
It is important to understand what is separate property in an Illinois divorce, since only marital property is subject to division. Separate property generally includes assets the spouses acquired before the marriage and kept separate, as well as gifts and inheritances kept separate. One spouse’s infidelity does not entitle the other spouse to separate property.
Alimony
Illinois law says that whether marital misconduct occurred should not factor into alimony. However, infidelity can affect alimony in several indirect ways.
For instance, if the dissipation of marital assets occurred, it could play a role in determining alimony awards. If the adulterous spouse is the one requesting alimony, the court may examine whether the spouse used marital funds to support the affair, such as spending money on gifts, travel, or hotel stays. Dissipation of assets could reduce or eliminate the spouse’s case for spousal support, depending on the circumstances.
On the other hand, if the adulterous spouse is being asked to pay alimony, dissipation could play a role since it might have increased the other spouse’s financial need. Dissipation could also justify a more favorable financial award to offset the loss of marital assets.
Meanwhile, a spouse who moves in with a new partner or who gets remarried can lose his or her spousal maintenance. This can happen regardless of which spouse committed infidelity.
Overall, the factors determining alimony include marriage length, each spouse’s income and earning capacity, the standard of living during the marriage, the age and health of both spouses, and any contributions one spouse made to the other’s education or career. About 5.1% of DuPage County residents younger than 65 years old have a disability, and disability plays a role in some alimony talks.
Prenuptial or Postnuptial Agreements
Some prenup or postnup agreements include infidelity clauses, and they may further contain financial penalties for a spouse who commits adultery. Despite Illinois being a no-fault divorce state, its courts generally do uphold prenuptial agreements entered into voluntarily and with full financial disclosure.
In other words, the court is likely to enforce an agreement that clearly defines consequences for infidelity. Common ones are forfeiting spousal support or specific assets. However, if an agreement is unconscionable, such as being overly one-sided or entered into with duress, the court might invalidate or modify it.
Why You Should Consult a Divorce Lawyer in DuPage County, IL
Divorce is hard enough by itself, and infidelity can add to the emotional and legal complexities. Divorce attorneys can help with how to file for divorce, identify marital and separate property, determine if dissipation of assets occurred, and advise on the potential impact of infidelity in the split. If you have a prenup or postnup, an attorney can identify how enforceable it might be or make an argument for it being unconscionable.
Attorneys can provide emotional support and the peace of mind that someone is solidly in your corner advocating for you. Working with the right attorney is important, of course. Questions to ask a divorce lawyer could include:
- What is your experience with cases that involve adultery and alimony?
- How might infidelity affect property division in this situation?
- How can I protect my financial interests with infidelity and divorce?
- How should I deal with any potential dissipation of assets?
- Do you think infidelity could factor into child custody decisions here?
It helps if you can come to a consultation with notes or evidence of any impact infidelity has had in areas such as the children’s interests or property division. For example, if one spouse spends most of his or her free time with an affair partner, this could matter for custody determinations.
Similarly, if you suspect or know that a spouse bought gifts for an affair partner or covered a partner’s expenses, this could be a case of asset dissipation. Ask about the attorney’s experience proving this.
Another reason to consult an Illinois divorce lawyer is to ensure you make decisions that are as sound as possible. Infidelity can lead to anger, guilt, happiness, relief, shame, or a mix of many emotions. The parties do not always make the best decisions and may regret some choices, whether in the short term or long term.
A lawyer in DuPage County can offer a steady, objective perspective that focuses on long-term outcomes rather than impulsive reactions. Lawyers can guide you through each decision, whether related to custody, support, or property division, to ensure it falls in line with your best interests and goals. Having an Illinois divorce lawyer also helps prevent you from agreeing to unfair terms out of guilt, spite, or a desire to end the process quickly.
Infidelity can influence divorce in many ways. Contact us today at Erlich Law Office for guidance in your situation.
