My Spouse is Having an Affair

Sadly, I hear these words all too often from clients in my office: “My spouse is having an affair.” Infidelity is rampant in our society. We not only tolerate it, but movies and television almost seem to promote it. It is one of the most common causes of divorce. In fact, it is probably not the cause of many divorces, but it is often the final outward act that motivates the offended spouse to seek a divorce. In truth, I believe the real reason for most divorces is the deterioration of the relationship over time that results from repeated selfish, unkind and unloving actions by one or both partners.

So why am I writing this? I’m a divorce lawyer, and adultery keeps me in business, right? Yes, I suppose that’s true. But one of my primary responsibilities is to help and counsel my clients, and whether my client has had an affair or is married to a person who has, I am often in a position to offer counsel.

In this regard, the first thing I always explore with my divorce clients–those who have been unfaithful as well as those whose spouses have–is whether there is a possibility of reconciliation. See my “Seven Deadly Sins” article (Sin Number 1) on the Articles page of my website. An extramarital affair is NOT the death knell of every marriage. If husbands and wives are both willing to repent, forgive, and make real changes in their lives, many marriages can be saved after one spouse has had an affair.

If reconciliation fails, however, my counsel to a divorce client whose spouse has had an affair is to try to not allow hurt and anger influence her decisions in the divorce case. Although an extramarital affair may seem to a client to be the overriding reason for the divorce, it is important for the client to understand that the affair has little if any impact legally in a divorce. It is simply not legally relevant.

With the exception of rare “covenant” marriages, Arizona has a no-fault divorce law. A person does not have to prove grounds for a divorce. All that is required is a belief by one of the partners that the marriage is irretrievably broken. See A.R.S. Sec. 25-312 (3). An extramarital affair, therefore, has no legal bearing on whether a person is entitled to obtain a divorce in Arizona.

Similarly, an affair usually has no impact on the division of assets. Arizona divorce judges are required to divide marital property “equitably, . . . without regard to marital misconduct.” A.R.S. Sec. 25-318 (A). The exceptions to this rule are extremely limited, and it is very difficult for an offended spouse to win reimbursement of half of the monies spent by the cheating spouse in pursuing the affair.

Finally, an extramarital affair has virtually no impact on the judge’s child custody decisions. Most individuals who engage in extramarital relationships do so on the sly. They keep the affair hidden from their spouse and children. Under these circumstances, it is very difficult to argue that the affair has harmed the children in some way. Most judges today simply will not consider any evidence of an extramarital affair in making child custody decisions.

In sum, many marriages can be saved even after one spouse has had an affair. When reconciliation efforts fail, however, both spouses should try to accept that the affair is not legally relevant in Arizona, and they should not allow the affair to influence their decisions pertaining to their divorce case.

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