Infidelity and Divorce: In Divorce Court, Infidelity Doesn’t Matter

Infidelity and divorce are two hotly debated topics, particularly when it comes to divorce court. And it seems odd to address the issue of sex and marriage from a legal point of view, as if there is a constant tension between the two. After all, sex is one of the most compelling reasons for marriage.

Historically, sex was sanctioned by the church – which shaped the early Common Law construct our modern legal system draws from – only in the confines of marriage. Practically, marriage is an easy answer to the question of who to have sex with safely and often.

Romantically – at least in the early stages – sex drives the spouses together; most couples cannot keep their hands off each other. What does any of this have to do with legality?

Infidelity and Divorce: In Divorce Court, Infidelity Doesn’t Matter

Somewhere along the way, for a multitude of reasons, sex became a divisive issue. From a legal perspective, it is one of the two most-cited triggers that lead to problems in the marriage, topped only by financial stress. Problems in the sexual relationship can mar the balance that keeps spouses respectful, satisfied, and bonded. In some cases, it can become a veritable powder keg: unequal power dynamics, disinterest, no interest, sexual inadequacy, and infidelity are very often the final straws that drive one partner to seek a divorce.

At our family law firm, tensions over sex lead to divorce in a significant percentage of the divorce cases we handle. Three couples, in particular, come to mind almost immediately as representative of how sex and marriage wear each other down. The experiences of these three couples making their way through divorce court emphasize how easily couples can get into trouble because of sex; but also, how little the court is prepared to focus on it or to award a larger piece of the pie to one spouse because of these issues.

Infidelity and Divorce: Our Clients’ Stories

There were Cathy and Tim, whose rampant infidelity on both sides led to the birth of an out-of-marriage child; Barbara and Robert, who struggled with therapists to save their otherwise stable marriage because of an unsatisfactory sex life; and Joe and Susan, who had not had sex for years by the time Joe came to our offices seeking representation. All names, of course, have been changed for the sake of confidentiality.

Cathy and Tim

Let’s start with Cathy and Tim. Both spouses had several extramarital affairs. Cathy had three affairs (that she owned up to) early in the marriage before their children were born. Her husband, Tim, had an early affair as well. For their own reasons, they agreed to continue their marriage despite the infidelity issues. The marriage plodded along for another 11 years after the initial affair.

Their marriage looked from the outside like a fairly typical union – until one morning when a friend came by their home to tell Cathy that Tim actually had a one-year-old child and a girlfriend installed in a house only two miles away. The marriage exploded. Cathy came to our office, first to hear what her options were, and later to retain us to represent her in her divorce matter.

Throughout the ordeal of their highly contentious divorce, Cathy insisted that Tim’s infidelity is brought to the fore. She wanted it to be the main argument against Tim, and she wanted the judge to adjudicate based on this grievance. She believed the bulk of the marital estate should go to her as recompense for her suffering. It was to no avail. I cannot emphasize enough how little infidelity seems to matter in today’s legal proceedings.

Couples still harken back to an age when infidelity was an integral part of a judge’s considerations. Movies and television do little to dispel the perception, driving home the idea that if one spouse has been humiliated by infidelity the court will rush to their defense with a massive settlement. That is mostly in the past.

Today, family law judges are interested in addressing financial inequities between the spouses almost entirely for the sake of the children; or, if there are no children in the marriage, almost entirely for the sake of affording the spouse with lesser earning power a chance to find financial stability.

The judge in this first case was virtually deaf to Cathy’s misery over sex and infidelity, and even the birth of an extra-family child. The resulting alimony, support, and equitable distribution order was based entirely on a calculation of financial worth, earnings potential, and where the children spent the bulk of their time. The judge, in essence, took sex out of the deliberations entirely.

Barbara and Robert

Then there was Barbara and Robert. Robert came to our office four years ago because his wife, Barbara, was exasperated with the lack of sexual progress in their marriage. In short, the sex was unsatisfactory for her. Barbara’s entire case for divorce, in her mind, hinged on the inability of her husband to provide what she considered to be fundamental relief in the marriage – namely, good sex.

Barbara and Robert had been in therapy for years. They had most recently visited a sex therapist whose unenviable task was to coax Robert into being a better sexual partner. Apparently, the therapist was unsuccessful.

So, Barbara sought a divorce. When Robert came to Cooley & Handy, Barbara had already filed with another attorney. The basis of her case was that equitable distribution should be based on the fact that the couple’s sexual relationship was a dismal failure, and thus she could not remain in the marriage. Again, the judge did not see it that way, and for good reason. There is certainly nothing in Pennsylvania law that provides for the quality of the sexual relationship in a marriage.

He handed down an equitable distribution and alimony award based on the fact that Barbara made considerably more money than Robert, and awarded primary custody to him because he had been serving as a stay-at-home father. Sex had little or nothing to do with that judge’s decision, either.

Joe and Susan

Finally, there was Joe and Susan. When Joe first came to our office, he and Susan had not had sex for three years. Susan had lost interest in their sexual relationship and simply refused to have sex. Joe felt that the only recourse for him was to find an outside relationship, and he did so with what he considered to be a respectful and safe approach, one that he believed took everyone’s interests into account. When Susan found out about the affair, she immediately filed for divorce, and Joe, perplexed, ended up at our firm seeking representation.

Again, as with the other two couples, Joe felt the sexual dysfunction in the marriage would serve his case well. He felt he had conducted himself openly and honestly. Since his basic needs in the marriage were not being met, he believed he was entitled to rewrite the definition of what a marriage is. While that is arguably a fair option – many couples do come to arrangements that allow for open relationships while preserving the “integrity” of the family – Joe’s miscalculation was his downfall.

There are no provisions in Pennsylvania law for sexual frequency or satisfaction, and no requirements placed on either spouse in terms of fulfilling it. Where and if you have sex in your adult life is not something the court will weigh in your favor. Again, the case was decided in a courtroom solely on the basis of income and which parent was going to be the children’s legal guardian.

Infidelity Does Not Necessarily Mean a “Fair” Settlement

Infidelity and divorce used to be major game changers in the court systems. We have seen it time and time again. Aggrieved couples come into the divorce process in hopes that their aggrievement will serve them well in the courtroom. And judges can be a little bit arbitrary. There is no telling whether a judge will unconsciously give one spouse or the other a more favorable award because he or she feels some unacknowledged affinity with the issues.

Overall, however, sexual dysfunction – apart from abuse – does not generally serve as a good foundation for building a case against a spouse, wayward or otherwise. As one judge once harshly told an opposing client: get a therapist. The courts are there to adjudicate based on factors of income, earnings potential, and children’s needs. If there are other issues that have brought the couple into the infidelity and divorce arena, they should be dealt with by the appropriate professional.

So, I ask, if there is no right to satisfying sex in a marriage, why do statutes continue to suggest that marital misconduct, such as infidelity, should be penalized by the state through awards such as alimony?  And, if most judges prefer to dismiss the infidelity as unimportant, why do practicing attorneys continue to lead their clients to believe they should seek relief for such perceived wrongs?  Isn’t it time to move past the historical origins of marriage and the pretense that infidelity will be redressed in divorce?

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Kevin J. Handy is a Pennsylvania divorce attorney and divorce mediator with SnapDivorce Divorce Mediation. www.snapdivorce.com