Infidelity is a very common component of divorce, and it often makes for a challenging, emotional divorce. And yet, there are a number of people who not only start relationships while they’re in marriage but insist on maintaining those relationships while the divorce is still proceeding.
When a client asks me if he/she should start or continue with a relationship during divorce proceedings, my (almost always unpopular) advice is simple and succinct – and it’s always “no.”
In some divorce cases, the spouse is already aware that an extra-marital relationship exists, and the divorce process can be negatively affected by the presence of that relationship. Even so, the continuation of that relationship during the divorce always creates additional issues, which cause the divorce to take more time and cost more money.
Details about the relationship, including how much the unfaithful spouse spent on his or her paramour (including monies spent after separation, during the divorce), can become part of the discovery process, and should the case go to court, he or she may be called as a witness and asked questions about the relationship. While the discovery process might not amount to anything legally, it can result in a considerable amount of harassment, and depending on the circumstances, could lead to the unfaithful spouse and/or lover being fired and/or having their reputations tainted. Many spurned spouses are more than happy to make sure this happens.
If money has been spent on a paramour during an affair from a couple’s shared account, that money can be required to be reimbursed as part of the final settlement – and the details about what money has been spent, and on what becomes part of the divorce record, can be an obvious catalyst for friction between the divorcing parties, and can therefore make your divorce more expensive and more emotionally taxing. It can even open up the paramour’s finances in certain circumstances.
The problem is generally not what will happen in court as a result of the affair. Most judges today do not punish spouses for affairs. However, there is less than a 10% chance that a judge will actually determine the results of your divorce in a trial. There is more than a 90% chance that you will settle outside of court. And this is where the affair will have a huge impact, making your divorce much messier than was necessary.
If the affair has remained secret prior to the divorce, don’t assume that it will remain secret throughout the divorce process. For clients who claim, “She’ll never find out,” assume she'll find out, and assume that the consequences will be unpleasant. I say “she” here because I find that it’s men who are generally more likely to want to have extramarital relationships while the divorce process is still ongoing, but some women are just as anxious.
I’m not saying that it’s an easy thing to keep yourself out of a relationship if you’re in love or to deprive yourself of happiness if you’ve been in an unhappy marriage for a substantial period. But, if you want to keep the “black hat” off of yourself in a divorce proceeding, pausing an extra-marital relationship while your divorce is ongoing is the prudent and legally advisable thing to do.
And if you’re not in a relationship at the time that you or your spouse initiates divorce proceedings, don’t start one until the divorce is finalized. A divorce is, after all, an important legal procedure that will take your time, money, and energy to get through successfully. Even those people who are eager to get divorced need to adjust to the changes a divorce brings and recover from the emotional toll a divorce takes. Though you might think you’re ready for a new relationship once you decide to divorce, chances are that you’re not.