Like many issues in domestic relations, seeking to be reimbursed by the domestic relations court when your spouse has irrevocably broken the marriage vows through actions such as an affair would fall into the category of “it depends.”
Finding out your spouse has carried on an affair during the marriage is justifiably an emotional gut punch and may lead to a divorce filing. Above all, it must be reiterated that the domestic relations court is a court of equity and not a court to punish.
First, with regards to custody, a parent will not be “punished” for having an affair by being prohibited from having parenting time or even shared parenting (joint decision making) when it comes to custody. If the matter goes to a trial, the issue of extramarital activities, by a parent, will likely only be allowed to be presented if the allegations directly affect parenting. The determination of what “directly affects parenting” is left up to the trial court to decide.
The court will not judge a parent’s lifestyle or moral values in determining what is in the best interest of the child(ren). If such matters as an affair do directly affect a child’s physical, mental, emotion and social development, then a court may listen to the allegations.
More commonly, matters of extramarital affairs come up when dealing with finances. If a spouse has spent marital funds on the affair, the non-offending spouse can claim financial misconduct and request a distributive award or a greater award of marital property. A “distributive award” is a payment made by the offending party to the non-offending party, either in a lump sum or in payments over time.
The burden is on the party claiming financial misconduct to show that marital monies were spent on an affair. This most often comes during the discovery process when documents are exchanged, and the non-offending party can examine bank records and credit card statements. Even if a spouse can show a specific amount of the financial misconduct, the final amount awarded to the non-offending spouse is up to the discretion of the trial court.
This blog is intended to be general in nature and does not constitute legal advice. To further discuss this, or other matters regarding your specific circumstances, please contact any of our domestic relations attorneys.