Unless you’re living under a rock, you’ve already seen it. A Fortune 500 CEO’s affair was spectacularly exposed, at a Coldplay concert, of all places. The CEO’s “private” indiscretion went viral before the encore. Memes galore and copycat Halloween costumes followed. As a divorce attorney who hears everyone’s innermost secrets daily, I was not surprised. Clients often confide that they’ve had affairs, but “not to worry” because they believe that their spouse has “no idea” and they’ve been incredibly discreet, so their spouse “will never find out.” News bulletin: although you may not be exposed on a Jumbotron in front of 30,000 cheering fans, the spouses almost always already know or will shortly figure it out.
The Myth of Discretion
In the modern technology era, our personal activities and whereabouts are very difficult to hide. We are connected to the internet and constantly digitally record our actions and movements constantly. We no longer need private detectives bursting into seedy motel rooms to discover affairs. The usual culprits are much more mundane:
- Credit card and bank statements. Restaurant charges, hotels, gifts, and airline tickets often appear on bank account and credit card statements, or simply charges at unexpected locations and unusual times of the day. Uncharacteristic larger cash withdrawals used to pay these types of expenses in cash to avoid a digital record are also common tip-offs.
- Open computers or linked email accounts. All it takes is one “remember me” login or a non-password-protected computer to reveal a treasure trove of romantic emails and texts.
- Apple IDs and iCloud accounts. People are shocked by how often linked family accounts result in “private” texts shooting across their children’s iPads or other family-shared devices.
- Location and Fitness trackers. One infamous example involved a spouse whose Fitbit recorded a burst of “cardio activity” at 2:00 a.m.
- Shared rideshare accounts. Uber receipts sent to the household email have exposed many “late meetings.”
As a perfect example of how anyone can and will be caught, even a former CIA director and 4-Star General was caught cheating. General David Petraeus reportedly had an extremely clever plan to hide his communications with his mistress. They didn’t send each other texts or emails. They left messages in a draft folder and then read the other person’s messages when they logged into the same account. The moral? Even a CIA expert can’t hide an affair.
What Happens When the Secret Gets Out
The question every divorce lawyer gets is: “Does it matter legally?” In most states, adultery remains one of several grounds providing a basis for a person to get a divorce. However, with New York’s adoption of “no fault” divorce in 2010, every state now has some version of “no fault” divorce, meaning that a person doesn’t need to prove some bad act (such as adultery, abandonment or cruel and inhuman treatment) to entitle him or her to a divorce.
Courts often have little interest in spending their limited resources on trials over who was at fault when “no fault” grounds are available. If a party insists upon proceeding on the grounds of adultery rather than “no fault,” it often signals to the court that the party may be fueling significant attorneys’ fees for a purpose other than the actual divorce litigation — such as retribution, public embarrassment or humiliation, which may prove an unwise long-term strategy.
Adultery almost never impacts the equitable distribution of marital property in divorce. In New York, the court must consider multiple factors in determining the appropriate distribution of marital property, income, contributions, age, health, but not fault. Only when marital misconduct is “so egregious or uncivilized as to shock the conscience of the court” may it affect the distribution of property. See, e.g. Socci v. Socci, 186 A.D.3d 1289 (2d Dep’t 2010)(husband kidnapping and aggravated criminal contempt related to incidents in which he beat the parties’ two daughters with a belt and chained them to a tree overnight, and forced the plaintiff into his vehicle and tried to make her pour gasoline on herself); Pierre v. Pierre, 145 A.D.3d 586 (1st Dep’t 2016)(husband stabbed wife two times with a steak knife, slammed her head against the toilet and put it into the bowl, causing her to enter a coma, require months of hospitalization and five surgeries, and rendering her disabled).
Ordinary infidelity, even prolonged, is so common that it does not rise to the standard of “shocking the conscience” of the court. Even in a case in which the husband alleged that his wife had an affair, conceived a child that she knew or should have known was fathered by another man, and kept that information from the husband, the Court of Appeals held that it did not rise to the level of egregious marital fault to impact equitable distribution. See Howard S. v. Lillian S.,14 N.Y.3d 431 (2010).
However, time and resources devoted by a spouse to an affair may support arguments about reduced contribution by that spouse to the marriage and acquisition of marital assets subject to division.
From a public policy perspective, if marital fault impacted the division of assets, divorce litigations would be virtually endless as each party insisted on proving that the other spouse acted worse and was more at fault for the end of the marital relationship. The alleged adultery would be just one bad act in a long string of accusations, with each spouse insistent that the other’s actions were worse.
When Adultery Does Impact the Finances
While adultery itself does not alter the distribution of assets, spending marital property on a non-marital relationship often does. New York courts recognize that a spouse who dissipates assets on a lover may owe reimbursement to the marital estate. Examples include travel expenses or hotel rooms, gifts of jewelry or cash to a paramour, payment of rent or other costs for expensive dinners, or other entertainment expenses. The issue is that unless a spouse spends significant amounts or transfers large sums of money to a paramour, the costs of proving and quantifying the marital waste may exceed the amount of the recovery. The costs for attorneys or forensic accountants combing through bank and credit card expenses could be significant. So, attorneys should have frank conversations with clients to obtain authorization and discuss whether the benefits will likely outweigh the costs in that particular situation.
In addition to spending money on a paramour, when adultery serves as the cause for unemployment or reduced income, New York courts may still impute prior earnings in determining support. Loss of employment caused by one’s own misconduct will not excuse financial obligations. Conversely, if the wronged spouse’s intentional public exposure of the affair causes the adulterer to lose their job, the whistleblower spouse may face the consequences of their actions in the form of reduced support, as maintenance will likely be based on the new, reduced, actual income, not hypothetical income. In other words, revenge has a price tag.
Adultery’s Potential Impact on Custody
Adultery may also impact custody disputes. Generally, an affair has no relationship to the best interests of the children in terms of parenting time or decision-making authority. But a time-consuming affair could be evidenced by parenting patterns. A spouse who routinely absents themselves to meet a lover, to the extent that little time is spent with the children for months, may be portrayed as less engaged with or unavailable to the children. Moreover, many divorces involve negotiation or litigation concerning whether or when the children can be introduced to, or have any contact with, the parent’s paramour, regardless of when the relationship began.
Judicial Psychology: Fault in the Shadows
Although courts emphasize that fault does not impact equitable distribution, judges are human and are not immune to the sympathies of a matter. Infidelity can create unconscious bias or even color credibility determinations. In New York, where distribution of marital property is equitable, not necessarily equal, and where statutory calculations for support obligations may not apply to high net worth families “above the caps,” infidelity may influence how “equity” feels to the court in practice.
Conclusion
While adultery usually has no legal impact on either the division of assets, support obligations or custody, it inevitably alters the course of a divorce. Feelings of betrayal and anger often present barriers to settlement, even when the resolution is readily apparent. Proceedings become more hostile, more expensive, and more painful. The practitioner has no control over whether or when a client’s adultery will rear its head in the litigation. But if it exists, it will. It always does. So, the wise attorney will be prepared to address them as soon as they do.
