Can cheating cost you or your ex more money in a divorce? Maybe. Infidelity can be emotionally devastating, but its financial impact depends on where you live and what your situation is. Some states allow you to cite "fault," like adultery, as grounds for divorce, potentially influencing how assets and alimony are divided. However, many states are "no-fault," meaning misconduct won't factor into the financial settlement. Even in fault-based divorces, judges have discretion, so there's no guarantee of a bigger payout. Want more control? A prenuptial agreement lets you set the rules in advance, regardless of state laws or who might be at fault.

Understanding fault divorces: The way to get more based on cheating

Not all divorces are equal. In some states and situations, you can claim the breakdown of the marriage was the "fault" of one spouse, such as adultery. Here's how "fault" can play a role in getting a divorce:

What is "Fault" Divorce?

• Defined: It is a type of divorce where one spouse claims the marriage ended due to specific misconduct by the other. Common "fault" grounds include adultery, cruelty, abandonment, or criminal conviction.
• Types of Fault: The fault grounds that many states allow for include adultery, abandonment, cruelty, mental illness, and criminal conviction, and some states have others.
• Evidence Needed: You need to prove this to the judge, who decides whether or not to grant the divorce on those grounds.

Why Does it Matter?

• Financial Consequences: If proven, the judge MAY consider the spouse's fault when deciding how to divide property or award alimony (spousal support).

Important Notes:

• Not All States Do This: Check your state laws to see if fault-based divorce is an option. And see the list below of states that allow fault divorces.
• Judge Has Discretion: Even if fault is accepted, how it affects the outcome varies case by case.

Example: If Jennie proves John cheated, the judge could consider this when deciding if she deserves more assets or a larger alimony payment.

Here are the states that recognize some level of fault-based divorce (which is just over two-thirds of states!):

• Alabama
• Alaska
• Arizona
• Arkansas
• Connecticut
• Delaware
• Georgia
• Illinois
• Louisiana
• Maine
• Maryland
• Massachusetts
• Mississippi
• New Hampshire
• New Jersey
• New Mexico
• New York
• North Carolina
• North Dakota
• Ohio
• Oklahoma
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• Texas
• Utah
• Vermont
• Virginia
• West Virginia
• Wyoming

Understanding no-fault divorces

On the other hand, every state in the United States allows for no-fault divorce. Some states may only allow no-fault (meaning you can never claim fault for your divorce), and others may allow for no-fault AND fault divorce. Let's dive in deeper on no-fault divorces:

What is No-Fault Divorce?

• Defined: A type of divorce where neither spouse needs to prove the other did something wrong to end the marriage.
• All States Offer It: Every US state allows you to end a marriage without proving specific wrongdoing by your spouse.
• "No Blame" Divorce: The focus is on incompatibility, often termed "irreconcilable differences." You don't have to accuse your spouse of anything.
• Varies by State: Some states allow BOTH no-fault and fault-based divorces, while others are "pure" no-fault only.
• Pure No-Fault States: In states that are "pure no-fault," that means that they only offer divorces without blaming one spouse for the breakdown of the marriage. Even if your spouse cheated, you can't claim adultery as a fault ground in these states.

Why This Matters:

• Cheating May Not Impact the Outcome: In pure no-fault states, a judge legally CANNOT consider misconduct like adultery when dividing assets or awarding spousal support.
• Simplified Legal Process: No-fault divorces can be less contentious and less costly, as there's no need to prove fault.

Example: If John and Jennie live in a pure no-fault state, his infidelity won't factor into the financial side of their divorce, even if Jennie can prove what he did.

Cheating's impact: No-fault divorce vs. fault divorce

So, let’s say your spouse cheated on you. You want them to “pay,” and you want a judge to say YOU get more money in the divorce. Is this possible? Seeking "justice" after infidelity is understandable, but the legal options depend on where you live:

Fault Divorce States:

• Cheating Can Matter: If your state allows you to cite fault grounds, proving adultery could potentially influence how the judge divides assets.
• It's NOT Automatic: You need solid evidence, and the judge has the final say on whether and how much the cheating impacts the financial outcome.

No-Fault Divorce States:

• Focus on Irreconcilable Differences: Misconducts like cheating are irrelevant to the divorce terms in these states. Even with proof, it won't get you a larger financial settlement.

Key Takeaway: In pure no-fault states, your focus should be on getting a fair division of assets, NOT seeking financial punishment for your ex's infidelity.

Why fault divorces are problematic

At first glance, punishing misconduct in divorce seems fair, right? They need to pay for what they did... in theory. But in practice, there are downsides:

• Cost & Conflict: Proving fault requires lawyers, evidence, and extended court battles, making divorces even more expensive and emotionally draining.
• Potential for Abuse: Spouses may invent accusations to gain leverage, especially in contentious situations. This harms everyone involved, including children.
• Court Backlog: Lengthy fault-based cases clogged up the legal system, delaying other important matters.

The Shift to No-Fault: Recognizing these problems, most states adopted no-fault divorce options. This allows couples to end a marriage without assigning blame, potentially leading to a less hostile and more efficient process.

How a prenup can help

What can you do to protect yourself from unforeseen circumstances? Especially if you live in a fault-based divorce state, a prenup may be helpful. A prenuptial agreement (i.e., a prenup) can actually override the state default laws in your state regarding certain issues of the divorce. For example, you can lay out what happens in YOUR divorce in regards to alimony and property division, which may not be exactly what would happen according to state default law.

The bottom line on getting more money in a divorce based on cheating

Yes, in some states, if you cheat, you might be awarded less money. However, a lot has to happen before that occurs. First, your spouse has to actually argue “adultery” as the grounds for divorce (remember, this is expensive and time-consuming). Second, the judge has to approve that and “agree” that adultery was committed. Third, the judge has to look at the circumstances of your case and ultimately decide to give the cheater less (or not). The good news? A prenup can help protect your assets no matter what the future holds. Co-create your future & protect your ass(ets) with a prenup today!