This article was written by Hance | Wickham associate attorney Jonathan James.
Two weeks ago, reports came out that computer hackers gained access to the database of subscribers to Ashley Madison, the website that caters to married people interested in arranging affairs. There’s been speculation that the hackers would release the 37 million names to the public, and more than one news report on the situation opined that the mass reveal would be “good for divorce lawyers.”
That’s quite a mischaracterization – and it’s one that’s based on a misconception of how adultery affects a divorce.
First of all, I wouldn’t wish adultery – particularly, the revelation or discovery that one’s spouse has been having an affair – on anyone. Regardless of how it happens, it can be an extremely painful process, with emotional effects that can persists for months or even years. It can profoundly affect a person’s trust – not just with the spouse, but with all people.
But adultery does figure into a lot of divorces, and it’s not as shocking or as profound to judges as some might think. There’s a conception out there that if your spouse cheats on you and you push for divorce, that it will result in some great financial windfall, and that’s simply just not the case.
In Texas, the division of the marital estate in a divorce case is based on a “just and right” standard, which involves around 15 different facets, including the length of the marriage, the incomes of each spouse, and custody agreements involving the children.
While the notion that someone being at fault for the divorce by starting an affair can figure into a judge’s final decision, it typically doesn’t tip the balance to a dramatic degree. Even though some lawyers will embark on depositions and other legal actions to make adultery an issue, they probably don’t recoup the cost of the legal fees for the client in the final settlement.
The first thing I advise someone who learns of adultery is to determine whether or not he or she really wants to move forward with divorce. Adultery can be overcome, and marriages can survive, but couples have to be committed to each other and to a counseling process that will help them move forward.
If a person does determine he or she wants to move forward with a divorce, it’s important to keep emotions separate from what makes the most sense in a divorce. While it might tempting to try to punish a cheating spouse in divorce proceedings – and there are certainly ways to do so – it might make the pie you’re trying to divide smaller.
By opting for a collaborative divorce, for example, a couple can keep the divorce out of the courtroom and out of the public eye. Hurting a spouse’s reputation by making details of an affair public can provide a sense of revenge in the short term, but if he or she loses a job over it, it can adversely affect the future of everyone involved – children included.
The collaborative divorce structure allows for a mental health professional to keep negotiations productive and solution-focused. While adultery certainly impacts the trust a couple has with each other, the collaborative structure helps couples move toward solutions in difficult situations. In some cases, a spouse who’s been wronged may have some negotiating leverage – and the spouse who committed adultery may make concessions in the interest of keeping the divorce private and out of the courtroom.
It doesn’t take an affair for a divorce to be charged with emotion, of course, but an affair often brings a whole other level of emotion to divorces. The bottom line is that emotions can get in the way of the bottom line — and if you can deal with your emotions in the counselor’s office rather than the courtroom, you’ll stand a much better chance at settling your divorce and moving past it.