Why Cheating Doesn’t Matter Anymore (in the Family Court)

I try to build this blog upon common refrains spoken in my office, in the hope that if a disproportionate number of clients have the same questions and concerns, chances are a great number of people out there on the internet do also.  But, perhaps, those people (hopefully the readers of this blog) are not quite in that place yet to pluck up the courage to take an hour or so from their afternoon to go have a chat with their friendly neighborhood attorney.

One such chorus has to do with cheating.  What if I cheated?  He cheated on me.  How does his cheating enter into my case?  Do I have to prove it?  How do I do that? What exactly is cheating, in the court’s eyes anyway (the proliferation of internet flirting, and the terrible ease with which one can reconnect-with-an-old-flame has made this one popular).

You should know in advance that the days of the ivory tower Family Court are well in the past.  In this day in age of ubiquitous divorce, narcissism and Tinder the judges are wary to wade into the muck of who slept with whom.

I remember a rather famous exchange at a bench conference a couple of years ago where Wife’s Attorney was red-faced and adamant that his client should receive more assets than Husband because Husband had cheated.  The judge, non-plussed, looked at the overheated attorney and said, “You know, I agree.  Your client can get 53% of the pension instead of 50%.”  Case closed.

I like this anecdote for two reasons.  The first is that, for the most part, Family Court judges in Rhode Island are about through with being the moral police.  They don’t want to pass judgment (ironically) and sure as hell don’t want to dedicate eleven afternoons to having a sobbing spouse sneezing into Kleenex on the stand talking about all the husband’s misdeeds (and, yes, it is always the wife accusing the husband – makes you wonder who all these husbands are cheating with).  No.

Once one spouse has filed for the divorce it is self-evident that the marriage is dead.  Tell a judge that one spouse cheated and she will look at you like, “That’s probably why they are here in court getting divorced instead of at the beach!”.  And judges being practical creatures and students of human nature understand that a marriage dies long before anyone actually files the divorce papers.  Your judge is not going to ruminate long o the fetid corpse of your marriage.

He cheated, she flirted, he tried to cheat, she has a Match.com account.  Your lawyer already knows.  Your judge already knows.  Trust us.  Unless you are involved in a high-asset divorce (over $350k in liquid assets in my humble opinion) it is generally not worth paying your attorney the legal fees to prove adultery to an indifferent judge to get pennies against the marital piggy bank.  Think long and hard about how to proceed before wading into that swamp.

Oh, and in Family Court cheating is sex.  Period.  Not flirting.  Not going together to Olive Garden.  Not creating a dating profile.  Not joining CrossFit.  To prove adultery you have to prove the sex.  And while that is traumatizing for the people involved it is kind of fun for the lawyers.  So, consider, who will this benefit?