It is interesting How Adultery Works in Divorce, but not in Illinois

Last weekend I had the pleasure of sitting down to dinner with 3 very nice and very good practicing divorce attorneys from 2 different states. They started talking about how they help their clients “prove adultery” which intrigued me since here in Illinois, adultery is meaningless from a legal perspective when deciding financial matters.  I came to learn that in North Carolina, a spouse who has committed adultery cannot receive maintenance (spousal support).  If the person who cheated has to pay maintenance, they might end up paying a lot more than they would have if they had remained faithful.  In Virginia, adultery is also considered when not only deciding if maintenance will be awarded but also the overall question of whose behavior really caused the divorce is also a factor. Here in Illinois, adultery cannot even be used as grounds for divorce anymore. In the courtroom, no one cares. It can sometimes be a factor in deciding allocation of parenting time if a significant other is always around, but it has zero impact on how assets or debts will be divided in a divorce case. The only exception to that is when one person uses marital funds for non- legitimate marital purposes, like gambling or spending money on a girlfriend or boyfriend (this is called dissipation).

On the flight home I began to wonder why adultery matters so little in Illinois divorce law and in other states is crucial to the point of routinely hiring experts with fancy cameras to stake out hotels.  Could it be a reflection in northern v. southern values? Is Illinois saying that it is okay to cheat since you won’t be punished for it or are we rather trying to simplify what is already a difficult process when it comes to dividing money and property in a divorce? How do I feel about it? What works better?

I have spoken to cheaters and people who have been cheated on. I don’t judge.  I listen and explain why it doesn’t usually matter when it comes to money. I can tell you that the people who have been cheated on are all pretty much outraged when they learn that this fact, crucial to them emotionally, will be largely ignored. Where is the justice, they ask me. (Apparently the answer for them lies south of here). For those who come to me admitting adultery and looking for a way out of the marriage, they are relieved to know that it won’t become central to the divorce and that in large part, the judge won’t care and probably won’t even hear about it.

I see the pros and the cons.  Proving adultery has to be tricky and very draining- both emotionally and financially.  The spouse who needs support the most may be out of luck due to an indiscretion that may have occurred long after the marriage was dead anyway. On the other hand, sometimes after the stories that I hear I wonder why on earth marital “wrongdoing” is not considered in awarding property or money as there are times when it certainly feels to me like it should be despite the toll that adding that element would take on those couples.  I suppose it certainly would discourage many people from ending their marriage, which brings up a whole other set of issues and opinions.

What do you think?

Carol O'Connor Cadiz
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Attorney & Owner at O'Connor Cadiz Law: Bankruptcy, Injury, Real Estate & Mediation
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