The Post-Divorce-Parenting Glossary

• What is adultery?
• Are there laws against committing adultery?
• Should adultery be brought up in a divorce case?
• Will committing adultery prevent a divorced parent from being a co-parent after the separation?
• Should children be told about adultery being a cause of the divorce?
• Will adultery affect child custody?
• How many marriages are confronted with adultery?
• How can adultery affect a parent's ability to raise their children?

What is adultery?

When a spouse has sexual intercourse with someone outside of the marriage that knowingly interferes with the marriage, he or she is said to have committed adultery. Adultery is often seen as cause for divorce and likely will lead to an unfavorable outcome in family court for the spouse who has committed adultery.

Are there laws against committing adultery?

Some countries treat adultery harshly, but while it is still considered a crime in the United States, it is almost never enforced. Through the years the courts have changed or evolved in how they view divorce and adultery. Traditionally adultery was tied closely together with divorce and it was much more difficult in the past to get a divorce than today. A spouse had to prove to the court that an egregious action, such as adultery, was committed by the other spouse in order to be granted separation or divorce.  This was referred to as at-fault divorce.  The burden of proof rested with the spouse seeking termination of the marriage and evidence of wrongdoing needed to be shown.

Should adultery be brought up in a divorce case?

Typically, adultery is not a consideration that legally affects the divorce process if cases go to court; however it does often affect the negotiation process if parties mediate their divorce settlement agreement.  The one time that adultery can become an issue that the family court might decide on is if there has been a misappropriation of finances because of the extramarital affair.

When a couple is married, they have a legal fiduciary duty to manage finances and assets that benefits the entire family.  If this responsibility has been breached due to adultery, then the victim might have a case on the grounds of misappropriation.  This might occur if the unfaithful spouse spend money on his or her lover during the affair, in a way that "injured" the family's finances.

Another possible situation where a divorcing person might be just in bringing up adultery arises if a sexually transmitted disease came from the affair.  In this situation called "interspousal tort", the injured party might have grounds to file a civil "battery" suit.  This might not be a factor in the actual divorce case, but it may be something that a victim can seek damages for separately.

Will committing adultery prevent a divorced parent from being a co-parent after the separation?

A person can be a lousy spouse, but a wonderful parent.  People are multi-dimensional, so the act of committing adultery does not in itself mean that the parent is not able to be an active co-parent when the couple separates.

The sad reality is that infidelity is almost never the cause of a divorce, but a symptom of deeper issues that a married couple failed to address for a long time.  That failure to address issues is what ultimately leads people to divorce, and when the divorcing couple has children, the divorce does not solve the real issue of not being able to communicate effectively with one another.  Ineffective communication is a significant reason why so many post-divorce parents find themselves in high-conflict parenting relationships.

With regard to co-parenting children after a divorce, adultery can be an issue that is a challenge for the two parents to move beyond.  If parents are unable to emotionally detach and move past a high-conflict parenting situation because of past adultery, then parallel parenting may be something that should be considered instead of co-parenting.

Even after the emotional wounds of adultery have been left, a divorced couple determined to engage in high-quality parenting techniques can be wonderful parents and help to reduce the chances of divorce causing significant psychological negative effects in their children.

Should children be told about adultery being a cause of the divorce?

Every situation is different.  It does't do any good to turn the situation into an angry battle.  The children will be wounded more than anyone.  At the same time, lying about the reason for the divorce is a horrible idea.  The children will probably find out more as they get older, so lying will convey to them that it is okay to distort the truth about things we have done wrong in order to avoid negative consequences.

Children deserve to know why, but they don't need to know all of the details.  Rather than them hearing that one parent cheated on the other, they should hear that the divorce is happening because of problems that mom and dad have, and that these problems have led them to fall out of love with each other.  

Also, the children should hear that the divorce is not their fault.  Hopefully the children learn that both parents still love them very much and that these problems have been going on for a very long time.  Then parents should reassure the children that despite these problems, having children was the best thing they ever did, and they wouldn't change that for the world.

Remember the goal in a child-centered divorce is to move on from the anger we feel in the past and focus on doing what is right for the children in the future.

Will adultery affect child custody?

While no-fault divorce laws exist in every state in the U.S., adultery can be a factor in a child custody case in certain states.  With regard to child custody, if the person who committed the infidelity did so in such a way that the children were aware of or witness to it, that could be a factor in the child custody case, if it could help prove the better parent standard.

Also, a few states still may use fault as a factor in determining how the assets of a divorce an spousal support awards might be handled.  In these states, proving the other person committed adultery might get rid of alimony altogether.

During mediation, adultery can be a very real negotiating factor.  If a parent feels guilt over infidelity, that parent is likely to give away certain things during mediation that might alleviate some of that guilt.  Statistically, most men are likely to let women have sole custody during mediation.  Adultery could be one factor as to why this happens, although there are many other factors that are probably more significant.

How many marriages are confronted with adultery?

Research indicates that 18 to 20% of marriages have had issues with at least one act of infidelity, and it is men who are more likely than women to have an extramarital affair.¹  This might be one correlation that partially explains why more women initiate a divorce than men.  Women initiate about two-thirds of the divorces, meaning they are the first ones to contact a divorce attorney and file for divorce.

Furthermore, research suggests that men are more apt to engage in infidelity because of not being satisfied sexually, while women who engage infidelity are more likely to do it because that are not emotionally satisfied with their married partner. ²

How can adultery affect a parent's ability to raise their children?

Certainly adultery can be a factor in parenting.  Children have a natural inclination to view their parents as infallible super-people.  When that facade is torn down, the child must adjust his or her perspective, which can be devastating to some children.  Children not only want to like their parents.  They want to be like their parents.  For this reason, adultery can be an extremely delicate issue to contend with for divorced or separated parents.

The challenge is to somehow find a way to show children that everyone makes mistakes and not let them think that the adultery was somehow justified.  The healthiest lesson that children can learn after a parent has committed adultery is that the parent was able to acknowledge their wrongdoing and make amends.

One of the bigger challenges to post-divorce parenting after adultery does not apply to the parent that committed the adultery, but to the victim of it.  When a person has been cheated on, the feelings of betrayal and anger can linger on well after the divorce settlement.  The danger of this is parental alienation.  Parents who have been cheated on will need to find a way to still accept the other parent as being worthy of parenting their children.  Parents should be reminded of the divorced children's bill of rights if they ever feel the urge to commit parental alienation.

Sources

1.  Close encounters: Communication in relationships.Guerrero , L.K. , Anderson, P.A. , & Afifi, W.A. (2007).Sage Publications. 
2.  Sheppard, V. J., Nelso, E. S., & Andreoli-Mathie, V. (1995). Dating relationships and infidelity: Attitudes and behaviors. Journal of Sex & Marital Therapy, 21(3), 202-212

adultery, cheating, divorce, children, parents, infidelity, custody, child