***Adultery and Divorce: Facts and Myths

With so many entertainers, politicians, and professional athletes making headlines because of their sexual infidelities, it might be worth taking a look at how the law deals with adultery.

Let’s start with a definition. Adultery, in most legal contexts, refers to a voluntary sexual relationship between two people, at least one of whom is married to someone else. Adultery includes not only what we think of as affairs, but also trysts with prostitutes, homosexual activity, and any other extramarital sex involving another person.

I say “another person” because, legally speaking, looking at pornography, even to an excessive degree, does not constitute adultery. And the sex must actually take place; phone sex doesn’t meet the legal definition, nor do “emotional affairs” or other relationships that don’t involve intercourse or oral sex.

Most states still have statutes on the books classifying adultery as a crime, but these statutes have rarely, if ever, been enforced in recent decades. Legislators leave such statutes undisturbed because they don’t want to be seen by voters as endorsing adultery by de-criminalizing it, but for all practical purposes criminal adultery is a dead concept. (Under the U.S. Military Code, however, adultery is still prosecuted as a court-martial offense, although typically only in outrageous cases).

The concept of adultery is still alive, though, in the divorce courts. Even though every state except New York has enacted a no-fault divorce law, most of the other forty-nine states still allow a person the option of filing for divorce on one of the traditional “fault” grounds, such as adultery, mental cruelty, desertion, etc.

Because it’s usually cheaper and easier to file a no-fault divorce petition—proving the adulterous conduct is not always as easy as it seems—only a relatively small number of adultery cases are litigated. But sometimes an aggrieved spouse is determined to bring all of the unsavory facts to the attention of the judge, or the news media, in the hope of either embarrassing the other spouse, exposing the affair partner, or achieving a more favorable decision from the court.

Although it’s commonly believed that courts will “punish” adulterers by depriving them of child custody or visitation rights, or forcing them to pay disproportionately high amounts of alimony or child support, that hardly ever happens. Like it or not, most divorce courts treat adultery cases pretty much like no-fault cases: the final decision will be based not so much on “marital conduct” but on the best interests of the children and on the financial strengths and needs of the two spouses.

The major exceptions would be cases in which the adultery had a serious detrimental effect on the children’s safety or welfare (a wife who let her toddler run naked in the street while she was entertaining her love
in the bedroom), or cases in which the affair involved a significant expenditure of marital funds (a husband who put his girlfriend up in a $3,000 a month penthouse apartment).

But even in cases like these, the judge will usually address the harm caused by the adultery rather than the adultery per se. In the case of the penthouse apartment, for example, a judge might order the adulterous husband to reimburse his wife for “her” share of the money he spent on the girlfriend. And once the penthouse payments have been proven and fully-documented, a judge might reasonably infer that other expenditures of a similar nature had been made, such as dinners and drinks and possibly out-of-town trips. And some judges would consider not just the financial harm to the innocent spouse but the emotional harm, and order the adulterous spouse to pay for whatever therapy might be needed to deal with the emotional issues. But most judges would not impose unrelated penalties on the adulterous husband, such as not allowing him to see his kids.

Some people, incidentally, have pre-nuptial agreements containing provisions that address adultery, and which establish penalties that go beyond what a court would order. For example, a prenuptial agreement might state that if either party commits adultery during the marriage, he or she will have to pay a certain sum of money to the innocent spouse at the time of divorce, over and above anything the court might award. Generally speaking, such provisions are valid and enforceable, unless they impose penalties that a court would regard as a violation of public policy, such as automatically denying child custody to the adulterous spouse.

For those who feel that the divorce courts are too lenient in dealing with adulterous conduct, pre-nuptial agreements offer a relatively simple and straightforward way of imposing appropriate penalties. Of course, whether such penalties actually serve as a deterrent is another story. A great writer once said many years ago that forbidden fruit is always in season. A quick glance at the news will confirm the truth of his words.