Infidelity is one of the most common reasons for divorce. This guide discusses how evidence of cheating affects a divorce judgment.
Infidelity is one of the most common reasons for divorce. The level of betrayal will vary from case to case, but most divorces have at least some touch of disloyalty. I have had many conversations with betrayed spouses who are frantic to get some sort of revenge or vindication. "Can I use this against him/her?" is the common question. The only answer I have to offer is the typical lawyer answer: "It depends." The core issues involved in divorce are: (1) property division; (2) alimony; (3) child custody; (4) child visitation; and (5) child support. We will discuss how cheating can affect these issues below.
Regarding property division, infidelity will rarely play a role in the judge's decision. As stated by the Oklahoma Civil Court of Appeals: "Personal conduct is material only to the extent that it may reflect the existence or non-existence of that endeavor which contributed to the creation of the marital estate." Smith v. Smith, 1993 OK CIV APP 17, 847 P.2d 827. That may be about as clear as mud to the average reader, but the gist of the concept is this: unless the conduct at issue affects property available for division in the divorce, then it has no relevance to property division.
Notwithstanding, there are some situations where infidelity is relevant to property division. One example would be where a spouse uses marital money to support an affair e.g. buying gifts, booking hotel rooms etc. This behavior is not only disloyal, but it takes away money that would otherwise be available for division in the divorce case. In this situation, the judge can take the affair into consideration when deciding how to divide property.
Under Oklahoma law, there is no set mathematical formula for dividing assets. The only requirement is that property division be equitable. However, "equitable" does not mean "equal." Deciding what is equitable involves basic fairness, considering the attendant needs of both spouses.
As stated in Smith above, the judge considers each spouse's contribution to the marital estate. In theory, a cheating spouse who spent all day chasing lovers rather than going to work should receive a lesser portion of marital property based on his/her lesser contribution to marital property. While all this sounds reasonable in theory, these arguments rarely work in my experience. Unless there is an actual depletion of marital property due to an affair, Oklahoma judges probably won't take cheating behavior into consideration. In other words, the fact that a spouse didn't work as hard probably doesn't matter but spending money out of the bank to support an affair does matter.
As for alimony, the same considerations apply. Two factors affect alimony: need and ability to pay. There could be an increased need for alimony for the non-cheating spouse due to depletion of marital property. If the affair didn't happen, more money would be available for division. Therefore, the non-cheating spouse's need for alimony would increase. Conversely, I suppose that the cheating spouse's ability to pay would decrease, but I doubt an Oklahoma judge would have sympathy for a spouse who has less money due to cheating.
Regarding child custody, infidelity is only relevant when the behavior affects the best interest of the children. "Custody" refers to the right to control, direct or manage the children. In my experience, pretty much every person divorcing a cheater thinks that infidelity implicates the best interests of the children. However, typically, the behavior must be more than cheating alone to change the playing field in a custody battle. Oklahoma judges rarely make a presumption that someone is a bad parent based solely on cheating. In the eyes of the law, being a bad husband/wife does not make you a bad parent.
Of course, some situations strongly implicate a cheating parent's qualifications for child custody. If the cheater left the kids alone for an extended period to go and cheat, for example, then the behavior affects parental aptitude. The cheating goes beyond merely showing the person makes mistakes: the mistakes affect the children. Is the person cheating with a convicted felon, a violent person or someone on the sex offender registry? If so, the cheating shows a tendency to put the safety and well-being of the children at risk. These are just a couple examples, but hopefully the idea makes sense. Cheating matters when the evidence shows inability to make good decisions for the children.
The same considerations apply to child visitation. "Visitation" refers to the time the children will spend with each parent. If the cheater spends a lot of time on cheating activity, you could argue that the cheater prefers cheating over spending time with the children, so the cheater should get less time with the children. If the cheater's activities subject the children to risk of harm, then the cheater should have supervision during visitation or less visitation time to mitigate the risk of harm to the children. And so on...
Finally, we get to child support. This is a tricky issue because technically cheating should not affect child support. Child support is supposed to be based on quantitative factors as opposed to subjective concerns. It is a math equation prescribed by statute. The equation dictates the results, not subjective concerns like cheating or marital fault. Be that as it may, cheating can affect variables in a child support computation, so it affects child support.
Under the Oklahoma Child Support Guidelines, the most important variables are parental income, annual number of visitation overnights, health insurance cost and childcare cost. If disloyal behavior results in a decrease of awarded visitation time, then the cheater will pay more child support. The idea is the parent with the greater parenting burden should get support. If you have more time with the kids, you need more support. Therefore, if you receive less visitation due to cheating, then you will pay more child support.
Additionally, if a parent earns less money than the parent is capable of making, then a higher income figure can be imputed to that parent. This applies when a parent is willfully underemployed. Cheating can be time consuming. For example, someone with a sex addiction or pornography addiction may spend less time working in order to feed the addiction. In these cases, it might be appropriate to impute a higher income because the parent is capable of making more money but earns less due to willful neglect. The higher the income, the greater the support.
The examples in this post are not exhaustive. There are innumerable scenarios where cheating or cheater-esque behavior may be relevant for the issues involved in divorce. The rule of thumb is the evidence must have a purpose other than showing the cheater is a bad person. Cheating by itself does not equal more property or money for the non-cheating spouse. For property and alimony, the cheating behavior typically must result in less money or property available for division or an increased need for alimony by the non-cheating spouse. For custody/visitation/support the cheating behavior must show an impairment of good decision-making which affects the children or puts the children at risk.
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