At the beginning of this month Elizabeth Hurley filed for divorce from her husband of four years, Indian businessman and textile heir Arun Nayar. While she claimed the divorce was caused by Nayar’s “unreasonable behavior,” her own behavior made headlines several months prior when the tabloids broke the news of her infidelity with the also married Australian cricket player Shane Warne. As soon as Britain’s News of the World reported the couple had shared a hotel room and were photographed kissing in public, both Hurley and Warne rushed to the internet to do some damage control. They were quick to point out that they had been separated from their respective spouses for months. Their actions were intended to classify their relationship as something other than infidelity, and they highlight the general feeling in our society that infidelity is wrong and immoral.
The issue of adultery unfortunately arises frequently in divorce cases. Often one spouse has cheated on the other during the marriage and the infidelity may be the catalyst for the divorce. Or, perhaps the couple has already split and is working toward divorce when one spouse begins dating again. In either situation, the faithful spouse typically experiences a wide range of emotions, from hurt, to anger, to resentment, jealously, and the desire for revenge. The wronged party then turns to the legal system to exact that revenge, and is often surprised when they don’t find the retribution they hoped for.
Like many states, Ohio is a “no fault” divorce state, meaning that infidelity matters far less to the divorce court than most clients believe. In years past, it did hold greater import because a divorce could only be granted when one spouse could prove some wrongdoing on the part of the other. And Ohio law still lists a number of possible grounds for divorce that including some wrongdoing, including, among others, habitual drunkenness, extreme cruelty, gross neglect of duty, willful absence, imprisonment, and, yes, adultery. In practice these grounds are usually asserted in the initial papers that are filed, but they are very rarely actually addressed before the court. This is because Ohio law, similar to the majority of other states, now makes divorce more accessible by allowing couples to end their marriage without the need to prove any wrongdoing by either party. Under the current law a party need only show that the couple has lived separate and apart for at least a year, or, even easier, both parties can simply agree that are they are incompatible.
A mistake that many clients make is to expect more spousal support, or more child support, or a better property division, or a better custody and visitation arrangement as punishment to their unfaithful spouse. Unfortunately, though, while the courts do have some leeway to consider whatever factors are deemed to be relevant, the laws that govern how the courts are to decide issues of custody and visitation, child support, spousal support, and any property division make absolutely no mention of adultery as a relevant consideration. That is, absent some compelling reason, the infidelity of one spouse entitles the faithful spouse to no more than he or she would otherwise have received without the infidelity. This is indeed a bitter pill to swallow when one desperately wants revenge for their suffering.
At this point you may be shaking your head and thinking of a friend, family member, coworker, or acquaintance that had a different experience during their divorce. And this is not to say that one never pays for their infidelity in the context of a divorce. Indeed, if a spouse spends marital money treating a paramour to lavish vacations and expensive gifts he may find his property settlement cut in order to repay his spouse for the misused money. Similarly, a spouse who inserts her new beau into the lives of her children against their best interests might be unhappy with the court’s custody/visitation decision. However, generally speaking there is no legal mechanism by which a court will punish someone for infidelity alone.
Two main lessons should be taken from this.
First, if you are in the midst of a divorce, know that the law does not prohibit the dating of others. However, if you are considering dating before your divorce is final you should consider all possible ramifications of actions such as spending marital money to support someone who is neither your child nor your spouse. And if you have children, you should be very conscientious about their emotional well-being when determining what to tell them about your new relationship and how and when, if ever, they will be introduced.
Second, if you find yourself the victim of infidelity it is important to understand what your attorney and the legal system can and cannot do to help you. By seeking the needed emotional support from those more able to assist, such as family, friends, clergy, counselors, and the like, you may be better able to begin healing, while spending your time and money with your attorney and in the court system in the most constructive manner.