“Adultery” or having an affair is often a cause leading to divorce. Until January 1, 2016, adultery remained a ground for divorce in Illinois. Then Illinois became a pure “no fault” state. But even before January 1, 2016, all other aspects of a divorce, including allocation of parenting time, support, and property division did not consider fault. Distinguishing between adultery and the financial impact of an extramarital relationship can impact your case.
My spouse is committing adultery. I can prove it. Won’t this provide a substantial advantage to me in a divorce?
Generally: No. As of January 1, 2016, there are no grounds for divorce in Illinois other than no fault divorce (irreconcilable differences). Illinois divorce law is “no fault.” All the economic elements of a divorce (such as property distribution, maintenance, child support) must be determined “without regard to marital misconduct.”
But my husband spent a lot of money on his girlfriend. Can that be recouped?
Yes. This involves the concept known as “dissipation.” If he spent marital funds (funds earned during the marriage) for a purpose not related to the marriage (on the girlfriend) during a time when there were irreconcilable differences in the marriage, the money he spent generally has to be put back into the marital pot for division by the divorce judgment. Illinois law provides for limitations regarding dissipation claims in divorce cases: “no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage.” And to bring a dissipation claim, one must file a notice of intent to claim dissipation. See the Gitlin Law Firm’s Q&A regarding dissipation and Illinois law.
But what about
custody /allocation of parenting time with the children? Doesn’t adultery count?
Only to the extent that there is an effect on the children. The 2016 law addressed the history of Illinois’ divorce law and stated, “In 1977, the Illinois Marriage and Dissolution of Marriage Act became the law of this State. As stated in Section 102 of that Act, among its underlying purposes are: *** and eliminating the consideration of marital misconduct in the adjudication of rights and duties incident to the legal dissolution of marriage, legal separation and declaration of invalidity of marriage.”
Illinois law regarding allocation of parenting responsibility (what most people refer to as custody) has another “no fault” provision. The court cannot consider the conduct of a parent that does not affect that parent’s relationship to the child. Thus if an affair is discreet and the children are not affected by it, it is not considered.
I suspect my spouse of infidelity. Should I hire a private investigator?
Generally, no. As shown above, effective January 1, 2016, Illinois became a pure no fault state. Private investigators are expensive. The usual reasons for hiring a private investigator are not to “prove” adultery but to address other potential concerns. If you are considering hiring a private investigator, consult with your lawyer first.
Can my marriage survive an affair?
Yes. Most marriages can survive infidelity, but it usually takes counseling and a willingness by both to work out the kinks and reset the marriage.