Adultery and Divorce: What Do Judges Take Into Account?

Posted: 7 March, 2024

According to some estimates, 17% of marriages end because of a cheating spouse. Divorce attorneys assist with divorces due to infidelity on a regular basis over their careers. Women cheat to gain an emotional connection, while men cheat mostly for sex.

The most likely times for cheating to occur are during the first year of marriage, following the birth of the first child, the seventh year of marriage (the infamous seven-year itch), and during middle age.

Does Cheating Matter During a Divorce?

Nevada is a no-fault state. Adultery is not relevant and cannot be used against you. An endless list of accusations can be made, coinciding with talks of proving the affair. But these efforts are in vain. The court will not care. The judge is not in a position to judge morality.

People come to us with a false belief the court will punish a wandering spouse. They are wrong. Adultery is part of the emotional divorce, not the legal divorce.

What Does it Mean to Be a No-Fault State?

Fifty years ago, a couple needed a reason to get divorced. The courts would only grant the divorce if the complaint about the marriage met one of the grounds for divorce, adultery was one of the permitted criteria.

Before no-fault divorces became the norm, many couples who didn’t meet the qualifying criteria for a divorce lied about it. This became an enormous mess for the legal system when one spouse would change their mind about the divorce and admit to perjury to prevent it from going through.

In 1973, Nevada recognized no-fault divorces, where the spouses were simply irreparably incompatible. This made divorce faster, easier, and cheaper for couples who no longer wanted to be together.

When Does Cheating Matter? The Few Exceptions

We just got through saying adultery isn’t relevant. Is this flip-flopping? A little. There are a few, rare situations where adultery could affect divorce proceedings.

The first is on marital assets. There is a legal issue called marital waste. If you spend large amounts of community assets (typically in the form of dinners or vacations) on the affair, then a judge may require you to compensate your spouse for half of the assets used. The judge is not punishing, but rather ruling the affair unfairly reduced the divisible assets of the couple.

The second and much rarer circumstance is child custody. If the affair is with a porn star or the child’s teacher, the court may need to step in. We have dealt with both of these issues. The judge is not making a statement about “moral fitness.” They are simply looking at issues which may be detrimental to the mental health of the child.

The final area is with prenuptial agreements. Many prenup agreements have specific penalties for cheating. They are called “infidelity clauses.” An infidelity clause awards damages or limits economic rights if the spouse is found guilty of cheating.

Cheating FAQs

A marriage ending due to infidelity is unfortunately common. When someone realizes that there is no legal punishment for cheating and it doesn’t affect the division of assets, the following questions tend to come up.

Does Cheating Affect Alimony?

A judge is not required to grant alimony in Nevada. However, they will look at several factors to determine if alimony is appropriate. These factors include:

  • Financial situation of each spouse
  • Amount of income and earning capacity of each spouse
  • Amount of property owned by each spouse
  • Financial and non-financial contributions to the marriage
  • Standard of living enjoyed during the marriage
  • Length of the marriage
  • Education and career skills of each spouse prior to marriage
  • Age and health
  • Any other financial resources of each spouse

None of the above factors reference infidelity in any way. The courts will not punish cheating through adjustment of spousal support.

The general guideline for granting alimony is to prevent one spouse from being left with nothing. While half of everything often feels like nothing, many divorces involve no alimony at all. The divorce order will state the amount of alimony and whether it is paid in installments or as a lump sum.

During the divorce, one spouse can file a motion for temporary spousal support. This would only last until a judge makes the final divorce order. Temporary alimony is meant to provide for a spouse who would have difficulty providing for themselves during the course of the divorce. Again, a judge is not required to grant this.

How Can I Prove My Spouse Spent Money on the Affair?

Proving marital waste on an affair can sometimes cost more than the extra assets you might receive. Before pursuing this strategy, it would be wise to consult with a few divorce attorneys to see if this strategy is financially worthwhile. Remember that your goal in a divorce is to come out as financially stable as possible, not to punish your ex.

You may need to employ someone to perform forensic accounting on your behalf. This person will look through bank and credit card statements looking for hotels, vacations, and other purchases that cannot be explained through any other way. Forensic accountants can get extremely expensive fast so use caution.

My spouse left for the person they are having an affair with, how will that affect custody of our children?

The court is only looking out for the best interest of the child in custody cases. In most cases, as long as the person your spouse had an affair with doesn’t present potential harm to the child, it will not affect the custody decision.

If that person does have factors in their life that could have a negative effect on the child, such as drug use or extremely unsafe behavior, then the judge will take that into consideration.

If your ex will be living with this person, and presumably have the children staying there part of the time, the courts will examine this person’s life to ensure they don’t present any harm to the children. Divorce attorneys on both sides will also examine the situation.

Is there any way to get around an infidelity clause in a prenup or postnup?

In most cases, a prenup or postnup agreement supersedes the normal asset division rules of the court. However, if you or your spouse signed the agreement under duress, then the judge has the right to declare the contract invalid.

Reasons for invalidating the prenup would normally be something like one spouse gave it to the other to sign a couple of days before the wedding. Another invalidating situation might be that one spouse did not understand what they were signing and did not have the means to arrange for their own legal counsel.

Cheating questions? Contact the Las Vegas divorce attorneys at Right Divorce Lawyers. Call (702) 914-0400 to talk about a consultation.

Cheating & divorce discussed by Attorney Stacy Rocheleau with local news