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The Judge Doesn't Care About Your Husband's Affair

By some estimates, upwards of 50% of married persons will have an extramarital affair. With such a large number of people cheating on each other, it is no wonder that infidelity (adultery) is an all too common reason why couples get a divorce. The emotions that are engendered in a divorce run the spectrum from betrayal to indignation. There may even exist a genuine desire to seek revenge against a cheater through the divorce process. Many individuals are wrongly convinced at the outset of the divorce – often by friends, family or media misconceptions – that a court will make the cheater “pay” by distributing more of the marital assets to the non-cheating spouse.

The truth is courts are just not good at hearing and assessing the emotional aspects of a divorce. Absent extenuating circumstances – such as significant financial misconduct connected to the infidelity - courts are probably not going to give much weight to the infidelity in the final disposition of marital assets. There are a number of factors why this is so.

The vast majority of divorces in Connecticut are brought on the grounds of “Irretrievable Breakdown” – the so-called no-fault provision. Even under the no-fault provision, a court can consider the reasons for the divorce, including infidelity. While it is true a Connecticut divorce can be brought on the fault based grounds of Adultery, to be successful under such grounds (as opposed to the no fault provision) the Adultery has to be proved by a fair preponderance of the evidence. The problem with that standard is that usually the evidence of the adulterous affair is circumstantial and/or based on inadmissible hearsay. This often leaves the Court with the he said/she said testimony of the parties, or insufficient evidence to prove the adultery altogether. It therefore is usually better to proceed under the no-fault provision where evidence of adultery could be considered but is not the sole grounds for the divorce.

It is also important to understand that this isn’t your grandmother’s family court. Times have changed. Adultery – once illegal in Connecticut – hasn’t been a crime for nearly two decades. The social norms have changed and infidelity is just more common than it once was. Family court judges, if they have been on the bench for any length of time, have heard it all and in consequence most likely will not share your level of indignation. Additionally, because family dockets are usually overflowing with cases, court time is limited and tends to make judges focus on what matters most - such as the best interests of children and an equitable distribution of the marital property. It isn’t fair, but it is the reality. If you are involved in or contemplating a divorce, understanding this reality is critical if you are to stay focused achieving a desirable outcome for your future.
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