Washington is a no-fault divorce state. If your only grievance when filing for divorce is that your partner cheated on you, don’t expect to be able to punish your spouse through your divorce settlement. Unlike some states that allow for fault-based divorce, where a judge can take a spouse’s infidelity into account when ruling on a divorce settlement, Washington state is purely a no-fault divorce state. Bad behavior like cheating isn’t factored into dividing property, assets, and debts. Furthermore, your spouse’s infidelity won’t be seen as affecting his or her ability to parent. In most cases, infidelity won’t affect your parenting plan.
While it’s understandably upsetting if you recently found out that your spouse has been having an affair, it’s important to keep in mind that infidelity won’t likely change the outcome of your case should you try to take your divorce settlement to court. And even though you might feel guilty if you strayed from your partner, it’s equally important to remember that your infidelity doesn’t impact your financial rights when it comes to divorce, and infidelity doesn’t impact your parenting rights either.
Couples can often spare themselves unnecessary court battles, costly mediation fees, or counseling fees, if they can truly find a way to compartmentalize the anger, sadness, and resentment that led them to divorce in the first place from the practical aspects of their divorce settlement and parenting plan. When couples bring anger, resentment, and sadness stemming from infidelity into their divorce negotiation and co-parenting planning, they might end up spending a great deal of time with their divorce attorney or mediator, working through issues that have nothing to do with the legal aspects of their divorce. This could lead to a costly and possibly more contentious divorce settlement.
If your goal is to have a low-conflict, or no-conflict divorce settlement, or to negotiate your divorce settlement outside of court through the collaborative divorce process, you’ll likely need to set the emotions surrounding infidelity aside. Divorce is an emotional decision, but it is also a legal and financial one. When it comes to your divorce settlement, you aren’t arbitrating your emotions, you are dividing assets, debts, and making decisions about how you will co-parent.
At the end of the day, infidelity alone won’t impact divisions of property, assets, custody, or spousal support.
Yet, there are some special circumstances, where factors related to the infidelity could have an impact on a divorce settlement and child custody. In this article, we’ll take a closer look at these special factors. They can include:
- When infidelity results in financial losses or damages, the spouse who suffered financial loss might be compensated.
- When a spouse endangers the children due to his or her infidelity, this could potentially impact the parenting plan.
- When a spouse’s new partner endangers the children, this could potentially impact the parenting plan.
- When you get remarried or enter a new domestic partnership right after divorce, this could affect spousal maintenance.
…Let’s delve into these specific circumstances in more depth.
Financial Infidelity
Any assets, income, increases in capital gains, or increased business valuation that you acquire during your marriage would typically be considered shared marital property, or community property. Any debts either party racks up during a marriage would be considered shared debts. Assets, income, or purchases made before a marriage are generally considered separate property. Debts amassed before the marriage are typically considered separate debts. A prenuptial agreement can further delineate how a couple plans to view property acquired during the marriage. But, if a spouse uses community property (assets, income, or other resources) to support their affair, then the spouse who has suffered losses may be able to recoup these losses in the divorce settlement.
For example, if your partner spent money from your shared savings account or retirement savings account to buy him or herself a trip to Mexico with her new girlfriend or boyfriend, you may be able to recoup these losses in your divorce settlement. And if your partner spent shared money to buy expensive gifts for a girlfriend or boyfriend, expensive dinners, or spent money on other things like hotel rooms, or to support a girlfriend or boyfriend financially, then you might be able to recoup these losses in your divorce settlement. The court may require a spouse to repay his or her partner from separate savings or assets, or the court may award the spouse a larger portion of shared assets to account for the dissipation of assets during the marriage.
Furthermore, if your spouse racked up credit card debt to purchase weekend flings to the wine country, vacations, dinners, or gifts, the court might view these debts as separate, rather than holding them as shared debts. The court may require that your spouse refinance these debts in solely his or her name as part of the divorce agreement, or require that your spouse pay off these debts, so that you aren’t held responsible for debts incurred due to an affair.
If your partner used his or her separate savings, or assets to support the affair, then this wouldn’t be considered to have an impact on your divorce settlement. Each partner has the right to spend his or her assets as he or she sees fit.
So, when it comes to determining whether financial infidelity will impact your divorce settlement, traceability of assets matters significantly. If the money spent is traceable to your partner’s separate assets and didn’t impact community property at all, then infidelity shouldn’t impact your divorce settlement. If the money your partner spent on an affair can be traced to shared property and accounts, then the innocent partner may be able to recoup his or her losses.
As you can imagine, the accounting can sometimes get complicated, and may even require forensic accounting. Dissipation of assets usually can have a significant impact on a divorce settlement when a partner has maintained an affair for years, or where a partner used significant community assets to support their affair.
What will be considered significant for you, will largely depend upon your financial situation. In some cases, the dissipation of community assets is likely to be very small or hard to trace. Money spent on a dinner here or there, or small gifts like roses, won’t likely impact a divorce settlement as much as a partner completely draining the shared savings account for a secret cruise to Alaska. Again, every situation is unique, and your divorce attorney can help you understand your rights and options under the law.
The collaborative divorce lawyers at Truce Law in the state of Washington can review your circumstances and help you understand the benefits and drawbacks of pursuing your partner for dissipation of assets in your divorce. When couples decide to work together to settle their divorce peacefully, the unfaithful partner might sometimes decide to take financial accountability for money spent on an affair. In this case, your lawyers and possibly accountants can estimate how much money might have been spent on dinners, gifts, travel, and more. In other situations, couples might have brought significant separate assets into a marriage and might realize that money spent on the affair was not marital property to begin with. Finally, some couples decide that it’s not worth the fight or the forensic accounting. Couples often spend shared money on personal things without consulting their partners, and if the amount of money spent on an affair would be comparable to a dinner with friends, a shopping spree over the holidays, or how you and your partner typically spend marital assets on your own interests, then you might not want to fight about money spent on the affair in your divorce settlement, in the interest of peace and reconciliation.
It can be hard when emotions are high to see things clearheadedly. This is where having a collaborative divorce lawyer on your side to help you approach the settlement process from a more neutral and practical perspective is key.
When Infidelity Leads to Child Endangerment.
In most cases, infidelity will have no impact at all on your parenting plan. The mere accusation that your partner cheated on you won’t cause a judge to second-guess your partner’s parental fitness. People stray from their marriages, yet they remain devoted parents, and co-parents. For their emotional development and well-being, children need the support, love, and encouragement of both parents.
Yet, there are situations where infidelity could potentially lead to child endangerment. For example, if your partner left your young children home alone to meet up with their boyfriend or girlfriend, the courts might view this as abandonment, and may take this into consideration when making custody decisions. If your partner’s boyfriend or girlfriend has a concerning criminal record, uses drugs, is abusive, or you otherwise fear that he or she could cause harm to your children when your children are in the custody of your spouse with the new partner, this is something that should certainly be addressed in your parenting plan.
If, after infidelity, your co-parent (or you), will be moving in with a new partner, the new partner’s criminal or medical history can have an impact on the parenting plan if the new partner has a history of domestic violence, assault, child abuse, sexual offenses, substance abuse, or mental health issues.
The court might be required to limit parental contact or require supervised visitation if someone will be living in the co-parent’s household who has a history of child abuse or who has threatened to abuse a child. If your co-parent plans to live with his or her new partner and this partner has committed child abuse or threatened your child, this could be reason to limit visitation, or to require supervised visitation. The same is true if your co-parent’s new partner has a history of domestic violence, assault, or has committed sexual offenses. If you have reason to believe that your child would be at risk of domestic violence, assault, or sexual abuse, because of your co-parent’s new partner, this could be a situation where a new partner could result in the court limiting contact to the parent in the problematic relationship.
If your co-parent’s new partner has substance abuse issues, mental health issues, or other issues that you are concerned might affect your child, these concerns could potentially lead to restricted, limited, or supervised visitation if they are taken to a judge.
Basically, if your partner’s infidelity puts your children at risk, or if their new partner puts your children at risk, then this might be reason to limit contact or require supervised contact in the parenting plan, especially if your partner will continue to date or see the person who put your children at risk.
Spousal Maintenance.
Let’s say, under normal circumstances, a partner who was unfaithful would be entitled to receive spousal maintenance in your divorce settlement. And let’s say that during the divorce settlement process, your unfaithful partner receives spousal maintenance as part of your divorce settlement agreement. Then, not long after your divorce is finalized, your former partner gets married or registers a domestic partnership. Under Washington state law, unless your divorce agreement explicitly states otherwise, you would no longer be obligated to pay spousal maintenance. This is because when a person gets remarried in Washington state, the former spouse’s obligation to pay spousal maintenance typically ends. If spousal maintenance is part of your divorce settlement, you could also agree in your divorce settlement that spousal maintenance would end if the former partner receiving maintenance moves in with a new partner (cohabitation).
Couples can also choose to override Washington state law in their divorce agreement and decide to agree that spousal maintenance would be paid for a specific period regardless of whether the partner receiving spousal maintenance remarries or cohabitates with a new partner. If your marriage is ending due to infidelity, these provisions are something you might want to think about when negotiating your divorce settlement because decisions you make after your divorce could potentially impact your ability to receive spousal maintenance.
One could see a situation where a well-resourced spouse could potentially negotiate a divorce settlement in their favor. For example, a well-resourced spouse could negotiate a divorce settlement where they receive more property or assets or share of the couple’s shared business in exchange for agreeing to pay spousal maintenance for a set number of years (without any clause protecting the alimony in the event of remarriage), knowing full well that their former partner plans to get remarried right after the divorce. As soon as their partner gets remarried, spousal maintenance ends, and the divorce agreement in favor of the well-resourced spouse stands. This is why it is important to share your intentions with your divorce lawyer while you work through your divorce agreement, and why it is also important to speak to your divorce lawyer before you sign a divorce settlement that on the surface appears favorable but might have hidden land mines.
Infidelity generally doesn’t affect a divorce agreement, but it can impact your future, and your plans can have an impact on how a divorce settlement pans out.
Key Takeaways.
Infidelity alone isn’t something the courts consider when making decisions about dividing assets or debts. You won’t get a better divorce settlement just because your partner cheated on you. But, if your partner used shared marital property, assets, or got into marital debt to support their affair, you may be able to request the court to restore property, assets, or lost credit due to your partner’s use of shared resources to support their affair.
Infidelity alone won’t impact your parenting plan, either. People can be unfaithful and still be good parents. But, if you have concerns for your children’s safety because your co-parent’s new partner has substance abuse issues, mental health issues, a history of child abuse, domestic violence, sexual abuse, or other issues, then the court may be required to limit contact with your co-parent if their new partner will be residing in their home.
Finally, while infidelity won’t impact your divorce settlement, remarriage after divorce could impact alimony. It is important to think carefully about your post-divorce plans and to share them with your divorce lawyer so that you can negotiate a fair divorce settlement that takes all your life circumstances into account.
Divorce after a partner has been unfaithful can be challenging. The collaborative lawyers in Washington state at Truce Law can help you and your former partner put emotions aside, to help you negotiate a fair divorce settlement, and to help you develop a parenting plan that is truly in your children’s best interest. If you were the person who was cheated on, it’s understandable to be dealing with anger, sadness, and resentment. And if you were the one who strayed, it’s all too easy to let your guilt get in the way when negotiating your divorce settlement and parenting plan.
Marriage is indeed an emotional commitment, but it is also a financial one. When people let their emotions get in the way, they can sometimes make financial decisions that are not in their best interests. Worse is when emotions get in the way of developing a parenting plan that supports the children. Truce Law is a collaborative divorce law firm in the state of Washington committed to helping couples navigate the rough waters of divorce. If your goal is to avoid a lengthy court battle and to be the best co-parents you can be to your children, consider reaching out to Truce Law today. We help couples negotiate divorce settlements and parenting plans outside of court, through the collaborative divorce process.
Learn more about the collaborative divorce process.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.