Affairs and Cheating – Do they affect Divorce, Custody, Visitation or Maintenance?


In this episode, Attorney Brad Tengler and Geoff Carter discuss how cheating can affect your divorce. From child custody to visitation and even alimony. How can an extramarital affair affect a divorce case? Tune in to find out!



Recording: Law Talk does not give legal advice. It is a source of information for people suffering the effects of divorce, or who have ended long-term relationships. If you need legal advice, please retain an attorney in your own jurisdiction.

Brad: Good evening folks, and welcome to divorce talk radio. This attorney Brad Tengler, here in the studio with Geoff Carter.

Geoff: How you doing?

Brad: Fantastic, man.

Geoff: Me too. As Todd would say.

Brad: The topic is cheating in divorce, Geoff. It never happens. First of all, we know it never happens.

Geoff: I’m kind of confused though. When you say cheating in divorce, you’re saying cheating because our divorce happened because of cheating?

Brad: You’re confused that cheating never happens in a divorce?

Geoff: No.

Brad: Or confused at how I labeled the topic for tonight?

Geoff: Yeah. There you go.

Brad: Basically, just what we’re talking about is cheating in the context of a divorce situation or custody situation. Does it affect the litigation?

Geoff: I’m going to say definitely. It makes sense, at least in my eyes.

Brad: And I’m going to say you’re wrong, Geoff.

Geoff: Really?

Brad: Wrong. But we’ll talk about, may be a possible exception later on in the show. But, generally speaking, no it doesn’t. It doesn’t. That’s not what the law is. Having an affair does not, according to the law, nor should it, affect your divorce in Illinois. In Illinois. Again, we’re only talking about the context of the law in relationship to a specific state. And in Illinois, it does not affect a divorce. It does not affect custody, it does not affect maintenance. And we can talk about the specifics of that.

Geoff: Well, I hope so because I want to know why.

Brad: Which one. Custody or maintenance?

Geoff: Let’s do custody first.

Brad: Okay. So, kids. Who gets the kids? And should an affair, or does an affair according to Illinois law, effect a divorce? The straight answer to that is, No, it doesn’t. It doesn’t.

Geoff: I can see that I guess. Because, just because, the mom or dad, or whatever the situation might be. I can see why that doesn’t make them better or worse of a parent. So, it shouldn’t affect custody. I see why there.

Brad: Well, let me play devil’s advocate here.

Geoff: Sure.

Brad: Why shouldn’t it? Isn’t it immoral? According to most peoples standards?

Geoff: Correct.

Brad: Shouldn’t affect who gets the kids?

Geoff: That’s a long thought there. No, you’re right. You’re right, that is a wrong.

Brad: Well, but again, we’re not talking about right or wrong. Obviously, for a lot of people that is absolutely one hundred percent wrong. But, we’re talking about whether or not, the Illinois statutes and the law that defines the how, and who, should get custody. Is it affected by an affair or a divorce? And the simple answer is, no.   Someone’s, quote end quote, “immoral acts” behind the scenes do not affect who gets custody a kid. It does not factor into the best interests. Actually, it can be barred from even testimony at trial.

Geoff: What does that mean though? How is it barred from testimony?

Brad: Well, as a divorce attorney, what we want to do, often, when we’re in a trial situation, is we want to disparage. To bring down the character of the other side. If I’m representing husband, and I know the wife has had an affair, I want to bring out dirt on her in the trial.

Geoff: Oh, sure.

Brad: But, the point is. And that dirt issue is having an affair some man for a year. Every Thursday night she’s go out have this affair. The judge would bar that as testimony, generally. Because, the only thing I’m trying to do is, to the judge, is make her look like a bad person. But the question is, does that affair affect her parenting? And the affair, in and of itself, according to Illinois law, does not affect her parenting. The only thing that I’m trying to do, is put her name through the dirt by bringing that topic up.

Geoff: Okay. That makes sense. I see, I understand that.

Brad: Now, here is the big if. Not the big if, but the big but. What if the guys she’s dating is a drug user?

Geoff: Or sex offender?

Brad: Sex offender. Has issues with domestic violence. Well, that’s going to be brought up. Absolutely.

Geoff: Do they ever run, when they figure stuff like that, do they ever figure out if the other person has warrants or anything like that? Or no? Background …

Brad: I’m not sure, so much about warrants. Warrants is whether or not there’s an arrest warrant out for someone. The court system itself will, generally, be aware of that. It could be you had a traffic ticket and you missed your day in court. And so they put out a warrant for your arrest. But absolutely, do they look at peoples backgrounds? As custody attorneys, as divorce attorneys, do we dig into that dirt? Absolutely. We want to know all of that stuff. Including the bad stuff about their significant others.

Geoff: But, how do they bring that in there though? I guess is a question for me. Because, I guess if the say …

Brad: How?

Geoff: … okay, I’m going to get a divorce with my wife because she cheated on me or my husband because he cheated on me. Well, how are they like “Well, who is the guy they were being with?” or whatever. How do they find that out? Like, how is that even information for the court? You see what I’m saying?

Brad: How does the court find it out?

Geoff: Yeah.

Brad: Or how does the divorce attorney find it out?

Geoff: Well, that too. How do they find all that information for somebody?

Brad: All kinds of ways. Is someone, let’s say I’m representing dad, and mom is dating a sex offender. We find out who he is. We find out his name. We issue discovery. They have to find written responses. We find out his date of birth. We do a background search on the guy. And it comes up that he was convicted of a sex offender crime in 2003.

Geoff: Wow.

Brad: And he’s around the kids.

Geoff: That’s crazy. I really didn’t know that happens.

Brad: Oh, yeah. That’s our job as a custody attorney, as a divorce attorney, is to find that stuff out when we’re going to trial.

Geoff: And to go above and beyond. I love that. That’s awesome.

Brad: Well, think about it. Your mom is dating a guy who is a sex offender, and she’s bringing him around the kids.

Geoff: Oh, sure.

Brad: That’s, I think, it’s going to affect custody.

Geoff: Fifteen years in jail for touching kids. Yeah.

Brad: I think it’s going to affect visitation. If she brings a sex offender around the children, she is becoming complicit in the danger that she is exposing the kids to. I guess, if she seeing someone on the side, every Thursday night, and the kids never see the [kid]. Well then, again, it has no bearing.  But, if the kids are around that person, absolutely. Absolutely. But the point is, is that cheating, in and of itself, boom, it does not affect custody. Does not affect visitation in any way. Under Illinois law, generally, you cannot bar a paramour from being around the children. One our judges one time said, if a, let’s say a couple is going through a divorce, and mom or dad starts dating someone and relatively quickly brings them around the children. So, they’ve only been dating a month, and they bring around the kids. Will it affect, in his mind who should have custody? In a best interest analysis? Yeah, absolutely.

Geoff: That makes sense.

Brad: Because, if you’ve only been dating someone a month. Well, who knows, you might break up the next month. And then you’re going to date someone else. And you’re likely to bring them around the kids. But it’s not the cheating. It’s the bringing the new person around the kids. Do you see the difference?

Geoff: It’s a new person, all in general. Right. That could affect the, I see that. And it makes sense.

Brad: Right. So, no. Cheating does not affect custody. In and of itself, it does not affect custody at all.

Geoff: Now, for those that are considering cheating, or are cheating right now though, maybe you should think about things and who they’re sleeping with because that may affect you later on. If they are a sex offender, maybe you should do your research before decide to act.

Brad: But, again, it’s not the cheating.

Geoff: Absolutely. I’m saying if you’re going to cheat, make sure you choose the right one.

Brad: It’s all the factors. It’s other factors. Who you’re dating plus, another factor.

Geoff: Sure. I’m just saying if you’re going to do the naughty stuff, then make sure you choose the right one is what I’m trying to say.

Brad: All right. Avoid those with criminal backgrounds, it’s generally a good life policy.

Geoff: So, what are some other things that, you said, I could ask?

Brad: Maintenance. Does it affect maintenance? Maintenance is the new term for the old idea of alimony. When people divorce, and they’ve been married for a significant period time. Is one of the spouses entitled to some kind of spousal support? Classic example. When you’ve got husband and wife, 37 years old, mom and dad have kids who are nine, seven and two. They’ve been married for twelve years. Mom’s a stay at home mom. Well, obviously, she has probably foregone professional opportunities, in order to raise the kids. If she’s a stay at home, and is 35, 37, and they’ve been together for 12 years. She’s had to raise the kids if she has all these, if they have these kids. So, she is going to be entitled to some kind of maintenance. Some kind of payment of money after the divorce for anywhere, it could be a little bit of time. It could be a long period of time depending on a bunch of factors. What if she was cheating, Geoff? Is she still entitled to maintenance?

Geoff: Yes.

Brad: You’re right.

Geoff: Finally.

Brad: Right. You are right. That’s right. She is still entitled to maintenance. Again though, there are some exceptions.

Geoff: Okay, okay. I know this kind of goes back to what you were said earlier, but obviously, when it comes to custody, outside the part. I know we’re talking about divorce, but when it comes to custody, the judge, you don’t think, will sway either way? Maybe, the fact is, “Well, you know this person . . . ”

Brad: You really like this custody topic, don’t you?

Geoff: Well, I’m just saying.

Brad: We’re on money now.

Geoff: I know, I know. I just got, I know I’m a slow thinker here. But, I’m just saying, when it comes to the judge you don’t think he’s going to be, “Well, you know this person was unfaithful. Therefore, I really think this person over here should have custody of the child.” Which would also sway the money part. That’s what I’m saying. Then that person would, the person that was more faithful, may or may not have custody.

Brad: Let me answer that question a little later on.

Geoff: I’m sorry.

Brad: No, no. I know what you’re saying. About a judges’ unconscious thoughts and opinions, and stuff like that. The short and long of it, is no. It doesn’t affect custody, it doesn’t affect maintenance.

Geoff: Okay.

Brad: But maintenance too, there are some exceptions to that. And that’s exception in Illinois is something called a continuing conjugal relationship.

Geoff: What?

Brad: I know. I know.

Geoff: Used a big word out there.

Brad: I know. I can’t even spell it, Geoff.

Geoff: Conjugal.

Brad: Conjugal. It means a marriage in practice, if not in legal fact. Mean that, there’s a bunch of factors that the court has to weigh. Like you live together. You go on vacations together. You do holidays together. You combine bank accounts. That’s a continuing conjugal relationship.So, if someone dates someone. Moves in with them. Shares expenses with them. Goes on holidays with them, goes to their family for family events. Then, that is going to be a bar to maintenance. You can stop maintenance then, in that kind of situation. Because they’re married in fact, de facto marriage, if not marriage in law. De facto marriage.

Geoff: Interesting.

Brad: But, that’s well, that’s way beyond, cheating.

Geoff: Right.

Brad: And in a cheating kind of situation, you wouldn’t even have anything close to a de facto marriage. A continuing conjugal relationship because the other spouse is going out and doing it on the sly. But is living with their partner, their spouse, and that’s who they have the marriage with. So, cheating doesn’t affect maintenance, at all. Except, if after the marriage, after the parties have separated, they move in with someone and, more than just move in with them, begin to share expenses and things with them.

But, yeah. Cheating, in and of itself, does not affect. There’s another exception. And this was fascinating, to me, that, this is kind of just a side note, that’s not the law in all states. I think in South Carolina, if you cheat, if you commit adultery, you can’t get maintenance. I’m not a South Carolina attorney, so this is not, that’s not legal advice. I can’t comment on that.

Geoff: I was going to ask.

Brad: But, I had a case once with, there’s people down in South Carolina, and I think that is the law down there.

Geoff: The law.

Brad: That’s old school. If you commit adultery, no maintenance.

Geoff: Man.

Brad: You’ve been married to someone for 35 years, you commit adultery, and you don’t have any way of making a living, and they …

Geoff: It’s illegal down there in South Carolina.

Brad: Maybe so.

Geoff: But then they’re unfaithful and that’s why they’re doing it. I don’t know.

Brad: I don’t know. But that’s not the case in Illinois. In Illinois, cheating doesn’t affect maintenance at all.

Geoff: Go ahead and do it. Yeah, great.

Brad: Then you have to deal with your priest of god.

Geoff: Right.

Brad: You don’t have to deal with the court.

Geoff: Yeah, lightning. Not court. Not custody, just lightning. What else? So, okay. What was that, are we going to get to the good point, part. Where I get to talk about that you said you were going to tell me about the judges.

Brad: I’m getting tired of hearing myself talk. So, I think you should talk.

Geoff: No. I’m saying like you’re going to tell me about the judge part. You said that judges …

Brad: Oh. Okay, well. As a little side note, maybe, does this kind of stuff subconsciously affect judges? I can imagine it does. Sure. This person has been doing ABC and D. I think it does. That’s purely personal opinion. Maybe I’m imagining myself on the bench, or something like that. And saying it affects, would affect subconsciously, a person. I think it could. Absolutely. That could never be articulated, from the bench.

Geoff: Of course not.

Brad: That could never be said, that this is the reason that I am doing something here, something, you know, ruling in this way. But, it could affect the bench, sure. I mean, who knows? Judges try to take in the whole situation. But it’s not something that Illinois law permits. It just simply isn’t. It doesn’t affect, by law, it does not affect custody or maintenance, child support, any of that kind of stuff.

Geoff: All right. So now we know, that even we may think cheating is wrong, the court system does not decide on child support, or custody, or maintenance for divorce according to the cheating.

Brad: That’s correct. Illinois law does not allow for cheating to be taken into consideration for maintenance and/or custody issues.

Geoff: Now, Brad, if somebody would like to have you as representation, or have a question for you as an attorney, how do they contact you?

Brad: We are located in downtown Rockford. 515 N. Court St. Our number is 815-997-5200.

Geoff: Awesome. Look forward to the next time.

Brad: Thanks, Geoff.

Geoff: All right. Thank you.


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