Does cheating affect custody or maintenance in a divorce?

Does cheating affect custody or maintenance in a divorce?

Infidelity is a common cause for divorce in the country. Illinois is one of only a few states that allows a party to claim adultery as a grounds for a divorce.

However, in divorce proceedings an affair will rarely extend beyond calling for the end of a marriage, and when it comes to deciding child custody, maintenance and other factors, infidelity carries little weight in the courtroom.

That could be a reason why most married couples in Illinois file under “irreconcilable differences” instead of on the grounds of infidelity. A wife or husband must prove an extramarital affair occurred during the marriage in order to be granted the divorce on those grounds, which can be difficult and expensive with little chance at a payoff.

When it comes to divorce in Illinois, the law is “no fault.” Meaning, even though a husband might cheat on his wife, which caused the divorce to be filed, it can’t punish the husband as a result. State law says the court must consider a divorce “without regard to marital misconduct.”

One example is child custody. It may seem logical that a cheating husband wouldn’t receive favorable treatment when it came to the custody of his children. However, the court won’t consider the “custodial provisions for any children” as a result of an extramarital affair. The only way custody would play a factor is if the husband wasn’t discreet in his affair.

If a spouse is living with another person while getting divorced, and a child has stayed with that parent, a judge could take that into consideration when deciding custody issues.

There are some other factors that can come into play in a divorce proceeding while a partner was unfaithful during a marriage. If a husband were to spend money on a mistress while still married that money must be put back to be divided among the married couple.

When it comes to alimony, or maintenance, state law again separates the affair from the divorce proceedings. The court will rarely concern itself with the affair when deciding on matters of splitting the property. Instead the main factors when deciding maintenance include: income, property owned by the couple, the financial obligations of both parties and the standard of living.

Some people might decide to hire a private investigator to prove that infidelity occurred in a marriage. While it might validate the suspicions of the person it will rarely result in a more favorable divorce settlement.

For more information on divorce, please feel free to contact The Law Office of Bradley R. Tengler in Rockford, IL at 815-981-4859 for a free consultation. Please note, the above does not constitute legal advice. Please discuss your specific rights with an attorney in your own jurisdiction.





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