Mommy Caught Kissing Santa Claus: Adultery and Divorce

November 18, 2014

Imagine the stockings are hung by the chimney with care, and the children are nestled all snug in their beds. Suddenly, you hear a clatter and spring from your bed to see what is the matter. You creep downstairs to have a peek and spy mommy kissing Santa Claus underneath the mistletoe! She was supposed to be in her kerchief and settling her brain for a long winter’s nap!

What role, if any, will mommy’s infidelity play in a divorce? The short answer is that the act of adultery plays a minimal role in a divorce.

Prior to 1977, Wisconsin divorces required proving fault in the other spouse. Some examples included proving that a spouse was incarcerated, involuntarily committed to a mental institution, was a habitual drunkard, had engaged in cruel or inhuman treatment or willful abandonment of the other spouse, or adultery. Establishing blame for the failure of the marriage was the primary objective. Critics of this system pointed out that oftentimes the conduct of both spouses contributed to the failure of the marriage. Focusing on guilt created an adversarial atmosphere and fostered bitterness which was detrimental to both spouses, especially when children were involved.

In response, Wisconsin changed to a no-fault divorce system in 1977. Proving that the other spouse did something wrong is no longer required. The court merely needs to hear each spouse confirm that the marriage is “irretrievably broken,” or that there is no possibility for reconciliation. No further explanation is needed to justify the divorce.

Under this no-fault system, adultery or other marital misconduct is not a factor when determining whether maintenance (also known as spousal support or alimony) should be paid or the amount thereof. Similarly, an affair cannot be used as a reason to award less property to the offending spouse. In short, a spouse who commits adultery cannot be punished or penalized financially in the divorce for the act of adultery.

There may be limited situations where cheating is relevant to the divorce, but not because of its hurtful nature or the act of the affair itself. An affair may be relevant if the offending spouse is spending significant amounts of marital money to lavish their new fling with gifts or vacations. In that situation, it may be possible for the other spouse to get credit in the property division for the marital money that was wrongfully spent on non-marital purposes. Additionally, an affair could be relevant in child custody or placement disputes to the extent there is concern about how the children will respond and adapt to a significant other. Again, the issue is not whether the offending spouse had the affair, but the impact a new romantic relationship would have on the children and whether it is in the children’s best interest to limit their time spent around a new significant other.

So while you may feel that mommy deserves only coal in her stocking this year, mommy’s affair will not put her on the naughty list in the eyes of the court.

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