Much to the surprise of the general public, adultery has very little impact on the outcome of a litigated divorce. There is a common misconception that an extramarital affair will be the smoking gun that changes the course of the divorce in the courtroom. The innocent spouse usually believes that the Judge will be appalled and offended, punishing the unfaithful spouse and rewarding the innocent spouse. In fact, that’s not what happens under Texas law. Although infidelity is a factor that judges can consider, it very rarely results in a significantly better property division for the innocent spouse. Nor does it cause the cheating spouse to have limited parenting time or fewer parental rights, unless the paramour is a registered sex offender or clearly dangerous to the kids.
Once you understand that adultery may not be much of a factor in litigation, the second thing you need to know is that over 90% of divorce cases settle, even if the divorce starts out using the litigation model. It is extremely unlikely that your Texas divorce will be litigated all the way to a trial.
So, we know that proof of your spouse’s infidelity is not going to help you very much in the courtroom and we know that you probably aren’t going to trial anyway. In all likelihood, your divorce will be settled. And what’s the best way to settle your case if adultery is a factor? Simply stated, the best way to settle your case if your spouse had an affair is through the collaborative divorce process. That is because the collaborative divorce process is the best way to settle your divorce whether or not adultery is a factor.
Marital infidelity naturally generates a lot of emotion. In a litigated divorce, this emotion creates a lot of extra cost without a big return on that investment. The wronged spouse is not going to receive a tremendous feeling of vindication or a grossly disproportionate share of the assets. In fact, the net financial benefit of going to court is generally negative. The innocent spouse will not get “sole custody” of the children. And the emotional satisfaction that you might expect to feel by telling your story to the judge is not nearly as satisfying as you believe it’s going to be. Research shows that judges hear about infidelity in well over half of all divorce cases. It may be the most shocking and upsetting thing ever to happen to you, but it is sadly “business as usual” for our family court judges.
Why Collaborative Divorce is Better if You are the Innocent Spouse
The collaborative divorce team involves a neutral mental health professional from the outset. From experience, cases involving adultery are not going to settle until the emotional issues have been worked out between the spouses. In a collaborative divorce, you have the expertise of a mental health professional to help you process the emotional aftermath of your spouse’s infidelity. If you are like most people, you are experiencing anger and sadness. You may also have legitimate fear about your financial future and the future well-being and stability of your children. All these emotions can exist simultaneously during the divorce process. Until you have some help working through these complex emotions, it’s hard to get down to the business of settling on a parenting plan and a property division that will work best for you after the divorce.
I have seen many acrimonious divorces shift into a productive settlement process once the wronged spouse is allowed the opportunity to get some of the emotions off their chest. The collaborative process can provide a needed opportunity to confront your spouse in a protected safe setting. Very often, the straying spouse will acknowledge the hurt and pain that they’ve caused you and can recognize the impact on your children. A sincere apology can go a long way – and it is typically achieved only within the collaborative divorce process. It is never reached in the courtroom, or in litigation.
Back to the question: why is the collaborative process better for handling a divorce in which adultery is involved? It is better because the collaborative process allows for the airing of your legitimate grievances, acknowledgement, and apology. It allows for the emotional protection of your children and for customized “rules and restrictions” for introducing and exposing the kids to a parent’s new love interest. Also, because the collaborative team helps manage emotions as part of the divorce process, a divorcing couple does not spend the entire marital estate on attorney fees. Instead, you can end up with a reconfigured family that’s in a better place after the divorce rather than a worse place, both emotionally and financially.
In the next blog Extramarital Affairs: Why Collaborative Divorce Is Better if You have had an Affair, I will discuss how the collaborative divorce process also benefits the spouse who has strayed.