Infidelity is a major problem among American married couples as some studies have found that at least 40 percent of marriages involve adultery from one or both partners. Adultery can bring a lot of pain and suffering to a family and in most cases, it even leads to divorce. When a married couple goes through the process of divorce following a case of infidelity, it is common to wonder what is the effect of adultery on divorce and how does adultery affect child custody? The following is an explanation of how adultery is defined, how it can affect divorce, and how it affects child custody.
How Adultery is Defined
In the state of Illinois, it is considered adultery by law if a legally married person engages in sexual activity with a person other than their legally married spouse in an “open and notorious” way. However, it is debatable what counts as “open and notorious” behavior.
Technically, adultery is a Class A misdemeanor under Illinois law that can result in a fine of up to $2500 and up to one year in jail. However, it is virtually never enforced, and the ambiguous language of the law makes it difficult for a charge of adultery to stick. In fact, no one has attempted to legally charge anyone with adultery in the state of Illinois since 1997.
I Suspect Adultery in My Marriage, What Should I Do?
Unfortunately, you cannot do much if a spouse commits adultery other than file for a divorce. Gathering evidence is tricky because only evidence gained legally is admissible in court. You must obey all Illinois privacy laws when gathering evidence, including the law that makes it illegal in the state of Illinois to record conversations without the consent of those being recorded.
Even if you can legally gather evidence of adultery, it really isn’t necessary when it comes to divorce. The state of Illinois officially became a No-Fault divorce state in 2016 which means that transgressions like adultery do not need to be proven in court for a divorce to take place. If you suspect your spouse of adultery, the best thing you can do is talk to an attorney that is experienced with family law.
How Does Adultery Affect Divorce Proceedings?
As mentioned above, Illinois is a No-Fault divorce state as of 2016 which means that things like adultery, cruelty, and desertion do not have to be proven in court to be granted a divorce. The only grounds for divorced currently recognized and accepted by the courts in Illinois is “irreconcilable differences.” The reason Illinois became a No-Fault divorce state is to make it easier for spouses dealing with adultery and abuse to be granted a divorce without needing to legally prove wrongdoing by their spouse in a court of law.
As a No-Fault divorce state, this also means that actions such as adultery cannot factor into judgments concerning property division, spousal maintenance, or child custody and support. According to Illinois law, maintenance, also known as alimony, must be determined “without regard to marital misconduct” so that the amount of alimony awarded is fair and reasonable. Judges in Illinois must consider more objective factors when determining alimony and property division such as the income and needs of each spouse.
If, however, the spouse who commits adultery spends marital assets in connection with the adulterous affair, this would be considered a “dissipation” of marital funds. As a result, a judge might adjust the property division to accommodate the other spouse for this use of marital funds.
How Does Adultery Impact Child Custody Disputes?
When it comes to determining child custody in a divorce, adultery does not usually affect the decision as much as what is in the best interests of the children. Child custody is not viewed by the courts as an award for faithful parents as adultery usually has little impact on their ability to be a loving and supportive parent for their child. Instead, the court considers only the most favorable options for the children to ensure that a decision is made purely in their best interests.
There may be certain situations in which adultery can affect a decision on child custody or support. A judge may take the adultery into account if you can prove that the affair had an effect on the financial or emotional well-being of your children. However, you would need tangible and compelling proof for this to even be considered by a judge.
Call Our Divorce Attorneys
Divorce is always a difficult situation regardless of the cause, and adultery in divorce can make the situation even more painful for all involved. As far as the courts are concerned, adultery cannot be considered when determining alimony, property division, or child custody and support unless it can be proven with tangible evidence that the adulterous spouse spent marital funds on the affair, or that the affair had a negative impact on the emotional and/or financial well-being of the children involved.
If you are about to go through a divorce proceeding and you are concerned about child custody, child support, alimony, property division, or any other aspect of the divorce, contact Allen Gabe Law, P.C. by calling (847) 241-5000, Ext 121.
Our attorneys are experienced in dealing with matters concerning divorce and family law and we will help ensure that child custody is determined solely on your children’s best interests.