Cheating spouse custody battle

While this may seem like a long time, consider the alternative.

When a no-fault divorce situation arises, the parties must remain separate and apart for one year prior to filing for divorce. And, even then, the parties must wait until a hearing is scheduled. A cheating spouse is not entitled to alimony. In South Carolina, a spouse who has committed adultery is generally barred from receiving alimony.

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Although several other factors are also considered, a spouse who cheats does not typically get to collect alimony. Importantly, adultery can also impact the distribution of assets in a divorce proceeding. Marital fault i. Adultery does not affect child support. Adultery is never a factor in calculating a child support obligation.

Impact of Adultery on Custody

However, child custody may be affected if adultery is proven in court, and the court determines that the actions of the cheating spouse were not in the best interest of the children. For example, a judge may find that exposing your children to a new boyfriend or girlfriend while you are still married had a negative impact on the children in certain circumstances.

This does not always carry the weight some have hoped but still may be used by the faithful spouse in a court hearing. It may still be cheating if you are seeing someone while separated from your spouse. In South Carolina, you are still married until a final divorce decree is signed by a judge.

That may be clear to some BUT other states, including North Carolina, no longer consider it adultery if in fact you are separated. South Carolina law dictates that if you date while separated, then your spouse is allowed to make the argument that you are committing adultery, which could have some legal consequences. Importantly, if you are likely to receive alimony, the act of dating or the perception that you are having sexual relations while you are still married, could prevent you from receiving an alimony award. Whatever the cause, clients can come into the office with a heap of misinformation and distorted versions of the law.

Here are some of the most common inaccuracies regarding divorce I have heard, and I hear all of them on a regular basis. I have no idea where this belief comes from, but it is by far one of the most frequent pieces of misinformation that clients have. There is one single inquiry in New York State and many others when it comes to determining custody — the best interest of the child.

The older and more disciplined the child is, the more heavily a court will weigh his or her wishes.

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• Does An Extra-Marital Affair Have an Impact on Child Custody?.

Once the child is legally an adult, at the age of 18, they are no longer subject to a custody order from the court. Then, and only then, can the child determine where they want to live. Typically, people come in believing this with relation to a car or house.

It makes no difference which party holds the title or mortgage. The same can be said even if one party made every single payment on the house during the marriage, and the other spouse never contributed a dime: If those payments were made during the marriage, with marital funds, it is marital property.

It is fantastic to line up witnesses who will testify on your behalf, and in the event the case proceeds to litigation, they will certainly be necessary. However, in a court of law, a letter is practically meaningless. It is not sworn to under oath, and it is not notarized.

It has no evidentiary value since for all the court knows, the client typed them all up on their computer at home and simply forged the signatures. This is probably the one I see and hear the most. It is a notion that I absolutely understand, and I have a great deal of sympathy for clients when they learn this is not entirely true.

I cannot tell you how many times a client has looked at me with shock when I tell them that yes, even if your wife had an affair and even though it is her pressing for the divorce, a court will still award her an equitable share of marital assets. New York law lists the specific factors a court can consider when dividing the property and awarding maintenance. Noticeably absent from these factors is fault. In fact, in New York, appellate courts have ruled it is reversible error to consider fault in dividing the property.

There are rare and specific occasions when something like an affair during the marriage may have an effect on the distribution of assets or maintenance for example, if the cheating spouse spent marital money to carry on the affair , but those cases are few and far between. Generally speaking, courts do not want to get involved in whose fault it was the marriage broke down, and it has very little effect on how property and money is distributed in a divorce.