Can You Get a Better Divorce Settlement If Your Spouse Cheated?

Money ShockEven though you know that cheating is surprisingly common in marriage (just grab the latest People Magazine if you need a reminder), you never think that it will happen to you…until it does. According to TruthAboutDeception.com, estimates peg infidelity rates in the United States at between 30% – 60%.  It may be nice to know that you aren’t alone, but that doesn’t help soothe your feelings of betrayal, heartbreak, and insecurity.

While many couples decide to try to save their marriage after infidelity is discovered, cheating is also one of the top reasons couples list for getting divorced. If you are done with your cheating spouse, you might wonder if his philandering ways can be used against him in your divorce settlement. Let’s take a look at this question.

Infidelity Won’t Get You More Money in the Courts

Every state in the United States offers some form of a “no-fault divorce,” which allows you to cite a version of “irreconcilable differences,” as your reason for divorce. As such, your spouse cannot be penalized by a judge for cheating in most circumstances. Though a judge may feel bad for you, that doesn’t mean you’ll get the house and all the cars and your husband’s investment portfolio while you’re at it.

There are some rare circumstances where your husband’s cheating ways can affect your divorce settlement in court. For example, if your husband paid $100,000 to put his mistress up in a luxury condo for a year, you could argue that you are entitled to some of that money (especially if you live in a Community Property State).

Additionally, if you can prove that your husband was an absentee or neglectful parent because he was too busy pursuing his new love interest, or if you can show that his new fling represents a danger to your children, you may be able to get majority or full custody of your children.

Cheating May Provide Leverage in Divorce Negotiation

Though the court can’t do much to punish your husband for cheating, you may be able to use this as leverage if you negotiate a settlement out of court. If your husband feels guilty about cheating, or if he wants to get out of the marriage so that he can wed his mistress, he may be more willing to compromise during your negotiations or mediation. This all depends on the individual circumstances of each couple. You can play the injured party all you want, but if your husband isn’t contrite, then you won’t see much benefit.

The Wording in a Pre-Nup

Your last, best chance to gain the upper hand as a result of your husband’s cheating is if you have a prenuptial agreement with certain clauses that punish cheaters. Some pre-nups will include a clause stating that a cheating spouse is entitled to less in a settlement or nothing if the cheating can be proven. This clause is usually placed in the pre-nup to protect a wealthy spouse, especially if the other spouse comes into the marriage without a lot of assets. In this day and age, however, it’s not uncommon for the woman to out-earn her husband. If your pre-nup has this type of clause, then apply it for all that it’s worth!

Don’t Drain Your Finances to Fight a Cheating Spouse

You may be feeling extremely betrayed right now, confused, or just downright angry. That’s understandable, but in matters of divorce, trying to “stick it” to your cheating husband may end up backfiring. Although you may relish the idea of making his life miserable by fighting for every penny in divorce court, litigating your divorce will be extremely time-consuming and expensive. You’ll end up paying thousands, if not tens of thousands of dollars more in attorney fees if you litigate everything instead of trying to mediate what you can. As hard as it is, you’ll be doing yourself a huge financial favor by trying to work with your spouse to come to an agreeable settlement with as little court time as possible.

Your spouse’s cheating caught you off guard. Don’t be surprised again! Learn more about what to expect during your divorce by reading our divorce article archive. We also invite you to attend a Second Saturday Workshop, where you can hear from divorce attorneys, financial advisors, and other professionals that assist people throughout the divorce process. Find a Second Saturday Divorce Workshop near you.

16 thoughts on “Can You Get a Better Divorce Settlement If Your Spouse Cheated?”

  1. Do I have any rights to ask husband to give me money for bills n food? He works for government. Will they be able to help me?

  2. My husband having an affair over a year. We have 3 kids together, the age range is 21 to 11 years old. We have 2 houses together. I live in Ohio and he live in New York, we have been living apart for 8 years. He come here every 2 to 3 weeks. I work full time job. My question is If we are divorce, can I get all the property because he was cheating? The women (mitress), she is an illegal immigrant, is it possible get her to deport? Thank you

    1. Good grief, Wendy… you’ve been living apart for 8 years and you want to get this poor woman deported because she’s been in a relationship with your pseudo-husband for over a year?!

      Your problem should be simply with your husband, not with this woman. Since he’s only been with her for over a year, she certainly isn’t why you’ve been apart for 8 years.

      Get a divorce, get what you can get, and move on, but you aren’t going to clean him out because he’s been “having an affair.”

  3. I am curious about the definition of marital assets. My spouse and I have lived in two separate homes for three years (he bought his during our marriage and I rent my home). We shared the same bed during those three years. My question is everything we accumulated during those years of maintaining separate homes considered marital assets? We never officially separated.

    Thanks

    1. Each state has different laws, so this is a great question to ask an attorney familiar with the laws of your state. Consider attending a Second Saturday divorce workshop near you to find out more about how marital property works.

  4. I have a question regarding the marital home. My husband has been having an affair for 6 months now, I found out about it 2 months ago and decided to work on our marriage, at that time he agreed. We went to Counseling, see a Pastor and visited the Marriage Builder site suggested by our Therapist. Two weeks ago I discovered that not only had my husband been lying to me for the past 2 months, he brought his mistress into our home. Not once, but now twice! We live in the State of CT. Do I have any rights to change the locks to our marital home? We have two boys 8 and 3. Thanks for your help.

  5. I’ve been married for 28 years and found out three months ago that my husband was having an affair for the past 4 to 5 years! He was living a double life unbeknownst to me. He was using marital assets to support the extramarital relationship he paid rent with her they live together on and off for four years he would tell me that he didn’t have money to give me and my son for food but yet we still paying money To help support her! Will that help me in a divorce settlement knowing that he used our money to support his mistress? Thank you

  6. I’ve been married for 23 1/2 years and during more than half of our marriage my husband has barely worked or provided for our family. (We have two children). I worked full time, the entire time up until 11/2016 when I became ill & was approved in 2018 for social security disability. When I could no longer work & I did not have income coming in for first time, I began to cash in my 401k retirement funds which was a mistake since the taxes were high & now I have no savings left. In addition to my husbands lack of contributing any money to our household, for at least 10 years I have been catching him sexting & emailing other women on his phone. Even our kids who are now 18 & 20 have known for years that he was doing suspicious things on his phone. Recently while paying our cell phone bill, I noticed many calls incoming & outgoing to the same number. So I was able to reverse phone number search, I found HER name & address and did something unlike me & I drove to her house in my son’s car which is 1 1/2 hrs from mine & yes, there was our car in her driveway. I took lots of pictures & left a small note on windshield. Question: I want a divorce, he said “ok” he’s not happy or denying the affair. What are my chances of keeping the house? Does it matter that I’ve paid so much more over the years on the mortgage and for everything else? Thank you in Florida.

  7. I found out my husband was cheating when he became very abusive to me verbal and physical. I have some pictures of the bruses and he also still denies it after my daughter caught him in the house having sex with this female while I was at my job. I got suspended from my job for 30 days for leaving in a rush when my daughter called me because I wasn’t thinking to clock out or tell anyone. He still denies it today until he starts drinking then I can hear him whispering in the basement to someone when he thanks I’m sleep. Do you think I’ll get alimony and help paying for my Bill’s if I divorce him . He always say I wont get anything.

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