February 4, 2012

Illinois Divorce: The Effect of Affairs

The "Ask Amy" column today in the Tribune discusses marital affairs and the offended party's need to tell others, including the children, the reasons for the divorce:

I have been married for 25 years. My wife had an affair early in our marriage and we worked things out with counseling. Two years ago I caught her having another affair but for family and health reasons I did not divorce her at that time. We put on an act for others, including our two children, so no one knows how bad our marriage is. Now my kids are in college and I want a divorce.

Some of my clients first came to my office for an initial consultation with the damage of an affair at the forefront of their concerns. In some of these cases, the custody of the children is an issue. In other cases, there are no minor children of the marriage, and the concern is property division and spousal support.

In cases where child custody is concerned, a marital affair may or may not factor into the issues concerning the best interests of the children in divorce. It's easy to say that an adult affair shouldn't be a factor in a custody determination, but my view is that sometimes underlying the affair behavior are other behavioral and/or psychological issues. Some people that have affairs in marriage also present with underlying personality disorders; they act out impulsively, recklessly, or have narcissistic features whereby the needs of the children are ignored in favor of selfish pursuits. Where the betraying partner has underlying behavioral or psychological issues, these clinical issues of course need to be evaluated. In some cases, the affair itself has a direct impact on the children, and the party without fault would be the more stable and most fit party to have the custody of the kids.

Some states allow marital affairs to factor into the property division. Illinois is not one of those states. While some clients have a heartfelt need that the judge know that they were betrayed in the marriage, the judges are quick to tell litigants that affairs cannot be a factor that the court can consider in dividing the marital property. If a betraying partner has spent marital money on a paramour, that conduct, however, is dissipation under the IMDMA, and the court will consider the wasting of marital money during an affair and order the marital funds be reimbursed to the offended party.