Before no-fault divorce laws, the courts considered sex something that was exclusive to marriage. A wife was protected from the negative consequences of adultery by criminal law, specific divorce laws that addressed adultery, and, in some cases, alienation of affection laws.
With the introduction of no-fault divorce laws, the courts, for some reason, decided they had no business being involved in the issue of whether or not a husband was faithful, or the right of a wife to be compensated for a husband’s cheating ways.
Let’s look at marriage and adultery from an economic point of view. Marriage vows connect two people emotionally, through their love, and legally, via a contract offered by the state.
But why, if the state considers marriage a legal contract, does it act as though that contract is less important, and less binding, than any other? If you entered into a business contract and your partner’s behavior made you lose any emotional and financial investment you had in the business, the state would surely hold that:
• You had been injured and had a right to compensation
• The courts had authority over the matter, and are willing to help you recoup any losses
Almost everyone will say that husbands and wives should be faithful to each other. Most people will say that adultery shows a lack of virtue and morals and that there should be consequences for those who commit adultery.
But under no-fault divorce, the courts do not punish adultery. Society may frown on it, and that kind a betrayal in a business relationship would surely be punished. But courts in this country have chosen to look the other way.
Who then will protect a wife who has been cheated upon? What does a wife do to protect her investment in her marriage?
“If a woman wants to be compensated for being married to a cheating man, she needs to accept that the courts are not there for her and the only help she will get is self-help,” says Ruth Pawlick, a Family Law Attorney and General Counsel for Troy State University.
Here are suggestions Ms. Pawlick gives to help women protect themselves:
• Draft a Post-nup.If there was no pre-nuptial agreement, it’s not too late to insist on a post-nuptial agreement that outlines the consequences if a husband should cheat. It may not deter adultery but it may protect the woman’s investment in their marriage.
• Seek reimbursement. If a husband spends marital assets or uses marital property with the other woman, a wife can request the court to order her husband to re-pay any losses, either liquid assets or marital property. Usually this is done during mediation or a divorce settlement negotiation. For example, if a husband lavishes $8,000 on breast implants for the other woman, or pays rent on her apartment, a judge will consider this a dissipation of marital assets and order it re-paid to the marital estate.
• Document everything.If a woman feels her marriage is on the rocks she should start documenting. Keep a record of arguments and conflicts and all of the people involved. In some states, dissipated assets are not ordered returned unless the wife can prove her marriage was already in trouble when the adultery took place.
• Don’t try to get revenge financially. We’ve all seen those movies where the wife finds out her husband has spent thousands on the other woman and she, in an attempt to get revenge, goes on a spending spree of her own. DO NOT DO THIS. Trying to get revenge by matching him dollar for dollar is viewed by the courts the same as dissipating funds on the other woman. You don’t want to go to court owing him money, you want to go to court with him owing you money.
• Know how the courts think. Family Court Judges have a lot of discretion. The more it looks like your husband is philandering, the worse it can go for him in court. Your job is to make the damage his cheating created in the family the main focus in court. As I said, people traditionally frown on the idea of adultery and, underneath their robes, Family Court Judges are all people.
• Behave yourself. Don’t contact the other woman. Don’t badmouth or defame her in any way. Do not do anything in regard to your husband or the other woman that will reflect negatively on you in court. When you are standing in front of a Family Court Judge, you want to look like a silk purse standing next to a sow’s ear.
No-fault laws or not, a wife can get a return on the investment she made in her marriage if she is smart and understands the impact a little “self-help” can make in divorce court.
How To Catch a Cheating Husband, 15 Signs to look for if you suspect your mate is cheating
7 Signs Your Husband is Cheating, by author, Christina Rowe (author of Seven Secrets to a Successful Divorce — What Every Woman Needs to Know)