VICKIE LYNN COCHRAN attorney at law
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Will your spouse's affair affect asset division in your divorce?

Adultery is a common reason for seeking a divorce in Arkansas and elsewhere in the United States. It is devastating to learn that your spouse was not faithful during your marriage. Not only is there emotional damage, there's also a risk of contracting incurable diseases if you were still intimate with him or her during or after the affair. Leaving a cheating spouse and filing for divorce is a common response to learning of an affair.

You may find yourself wondering if this affair will impact the outcome of your divorce. You probably want to hold your spouse accountable for the violation of your trust and your marriage. It's only natural to wonder if adultery will alter the property division process as you divorce.

Adultery isn't usually a direct factor in asset division

While you might hope that the courts consider the reason you filed for divorce when determining what is fair in terms of asset division, that typically isn't the case. It may have a minor influence on the final decision of how to divide assets and how much spousal support is ordered, but typically other factors guide the process.

The courts attempt to fairly divide assets, clarified by state law as generally a 50/50 division of all property and assets acquired during the marriage. However, the length of the marriage, special needs of one spouse or the children, contributions of each spouse to the marital property and the employability of both parties could result in some deviation from the 50/50 arrangement. For example, if you stayed home to care for the house and raise the children, the courts may consider that when deciding what is fair to you both.

Wasting marital funds on the affair could matter to the courts

There is one situation in which an affair can have a real impact on the outcome of the asset division process -- if your spouse used substantial marital assets on his or her lover. If you can prove that your spouse used marital funds to pay a lover's rent, purchased expensive gifts like jewelry or vehicles, took the lover on trips and paid for hotel rooms and expensive dinners, the courts could consider that to be evidence of dissipation.

What is dissipation?

The term refers to the use of marital assets, such as income during your marriage, for purposes that do not benefit the marriage. Some people intentionally give away assets or sell them for pennies on the dollar to exclude them from the property division process. Some courts may construe spending thousands of dollars on an affair to be a form of dissipation That could impact the final decision regarding how your marital property is divided.

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