Question: I had an affair before I filed for divorce. If the judge finds out about the divorce what might happen?
Answer: Divorce may be based upon irreconcilable differences or may be fault-based under Rhode Island Law. A divorce case may be filed based upon adultery. Thus, an affair may play a part in your divorce proceeding. However, the role the affair may play in your divorce will be directly related to the circumstances and the timing of the affair.
Consider these two diverse examples:
Example No. 1 - John & Tina
John and Tina have been married for 20 years and have two children. The second child turns 19 and goes off to college. Unbeknownst to Tina, John has been unhappy for hears and has considered divorcing her for years because they have had virtually no relationship. However, before John files for divorce he gets a promotion at his job and meets a woman who makes him feel alive again. He begins to see this woman for two months and then files for divorce and immediately moves out of the house.
In this instance, what role does the affair play? If Tina discovers that the infidelity began two months before John filed for divorce she might assume that this "other woman" and this "affair" are the cause of the marital breakdown and file a counterclaim for divorce alleging infidelity. If Tina insists on going forward with the counterclaim for divorce based on adultery, it is possible that her counterclaim will be denied if the family court judge hears John testify that he was unhappy for years and merely stayed together for the sake of their children and it was only by fate that he ran into a woman who made him feel alive again. If the judge believes John and believes that divorce was inevitable, then Tina should not prevail on her claim of adultery because Tina has not shown the affair was the actual cause of the breakdown of the marriage.
Example No. 2 - Bill & Sheila
Bill and Sheila have been married for five (5) years. Sheila has been relatively happy with Bill. He is a good provider, he takes care of her, he talks with her and listens when she needs his ear. Bill is very supportive of Sheila and encourages her to participate in whatever activities she might like. Sheila decides to take exercise classes and Bill pays for them. Sheila ends up with a rather muscular and attractive trainer for her classes. After working with her personally in the first class Sheila is all excited for her next class. After her next class Sheila asks her trainer to go out with her for coffee and over the next few hours Sheila entices her trainer to a nearby hotel where they have intercourse. Sheila begins to become distant to Bill. Bill notices it and continually tries to respond to Sheila's needs. Bill showers Sheila with gifts, takes her on a romantic 10 day cruise, takes her out to dinner more frequently and sends her flowers each month. Sheila explains that her favorite activity is her exercise class so Bill continues to pay for it. Bill After each class Sheila meets her trainer at a different local hotel or motel and continues her affair. Bill eventually discovers the affair about 14 months into the relationship. Bill is crushed and files for divorce based on adultery.
In this case Bill's claim based on adultery may be granted because the marital breakdown can be directly related to Sheila's affair with her trainer.
In either case, the family court judge is allowed to consider the conduct of the parties in the equitable distribution of the marital estate, both the debts and the assets.
In Example No. 1, unless John spent a considerable amount of money or gave his new girlfriend substantial assets or signed a loan for her and incurred more debt in his name, a family court judge is likely to conclude that John's conduct was not the cause of the marital breakdown and that it had little or no effect on the marital estate and therefore John's conduct will make little or no difference in the way the court will distribute the marital estate.
In Example No. 2, Sheila's deception may be shown to be the cause of the marital breakdown and as a result of the deception and Sheila's change in attitude toward Bill, Bill was deceived into believing that he was the cause of the problem or that he could rectify whatever the problem was between him and his wife. A judge might well find that Sheila's deception caused Bill to spend thousands of dollars in marital assets and incur thousands of dollars in marital debt in order to please Sheila. In the very least Sheila deceived Bill into paying for her classes and facilitating her affair.
If you assume in Example No. 2 that Bill spent $18,000 in that 14 month period for the classes, trip, flowers, etc... believing that he could repair the unknown rift in his marriage with his wife, the court may hold Sheila responsible for $18,000 more of the marital debt or divest Sheila of $18,000 in marital assets to make up for the damage her deception caused to the marital estate.
As you can see, in either example the idea is not to punish a party for their infidelity, but rather to determine if the infidelity was the cause of the marital breakdown and whether the infidelity caused any financial impact to the marital estate (ie. the debts and assets of the parties).
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