Saturday Cents: Can You Get a Better Divorce Settlement If Your Spouse Cheated?
Even though you know that cheating is surprisingly common in marriage (just grab the latest People Magazine if you need a reminder), you never think that it will happen to you…until it does. According to TruthAboutDeception.com, estimates peg infidelity rates in the United States at between 30% – 60%. It may be nice to know that you aren’t alone, but that doesn’t help soothe your feelings of betrayal, heartbreak, and insecurity.
While many couples decide to try to save their marriage after infidelity is discovered, cheating is also one of the top reasons couples list for getting divorced. If you are done with your cheating spouse, you might wonder if his philandering ways can be used against him in your divorce settlement. Let’s take a look at this question.
Infidelity Won’t Get You More Money in the Courts
Every state in the United States offers some form of a “no-fault divorce,” which allows you to cite a version of “irreconcilable differences,” as your reason for divorce. As such, your spouse cannot be penalized by a judge for cheating in most circumstances. Though a judge may feel bad for you, that doesn’t mean you’ll get the house and all the cars and your husband’s investment portfolio while you’re at it.
There are some rare circumstances where your husband’s cheating ways can affect your divorce settlement in court. For example, if your husband paid $100,000 to put his mistress up in a luxury condo for a year, you could argue that you are entitled to some of that money (especially if you live in a Community Property State).
Additionally, if you can prove that your husband was an absentee or neglectful parent because he was too busy pursuing his new love interest, or if you can show that his new fling represents a danger to your children, you may be able to get majority or full custody of your children.
Cheating May Provide Leverage in Divorce Negotiation
Though the court can’t do much to punish your husband for cheating, you may be able to use this as leverage if you negotiate a settlement out of court. If your husband feels guilty about cheating, or if he wants to get out of the marriage so that he can wed his mistress, he may be more willing to compromise during your negotiations or mediation. This all depends on the individual circumstances of each couple. You can play the injured party all you want, but if your husband isn’t contrite, then you won’t see much benefit.
The Wording in a Pre-Nup
Your last, best chance to gain the upper hand as a result of your husband’s cheating is if you have a prenuptial agreement with certain clauses that punish cheaters. Some pre-nups will include a clause stating that a cheating spouse is entitled to less in a settlement or nothing if the cheating can be proven. This clause is usually placed in the pre-nup to protect a wealthy spouse, especially if the other spouse comes into the marriage without a lot of assets. In this day and age, however, it’s not uncommon for the woman to out-earn her husband. If your pre-nup has this type of clause, then apply it for all that it’s worth!
Don’t Drain Your Finances to Fight a Cheating Spouse
You may be feeling extremely betrayed right now, confused, or just downright angry. That’s understandable, but in matters of divorce, trying to “stick it” to your cheating husband may end up backfiring. Although you may relish the idea of making his life miserable by fighting for every penny in divorce court, litigating your divorce will be extremely time-consuming and expensive. You’ll end up paying thousands, if not tens of thousands of dollars more in attorney fees if you litigate everything instead of trying to mediate what you can. As hard as it is, you’ll be doing yourself a huge financial favor by trying to work with your spouse to come to an agreeable settlement with as little court time as possible.
Your spouse’s cheating caught you off guard. Don’t be surprised again! Learn more about what to expect during your divorce by reading our divorce article archive. We also invite you to attend a Second Saturday Workshop, where you can hear from divorce attorneys, financial advisors, and other professionals that assist people throughout the divorce process. Find a Second Saturday Divorce Workshop near you.
By Candace Bahr and Ginita Wall, CPA, CFP®
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