After the crazy storm opening night of Forecastle Festival, I found myself at a booth with a gentleman going through a divorce in a state that is still fault based – i.e. adultery and mental cruelty. I was agog because as long as I have practiced in Kentucky, no fault divorce has been the law.
In Kentucky one party must allege the marriage is broken and there is no chance for reconciliation as requirements for filing a divorce case. Thus while the Ashley Madison leaks are fascinating if you’re a divorce lawyer or one caught in the trap of infidelity, the relevance of discovering your spouse is cheating may not get you more money or damages when the Court assigns and divides property in the action.
If your spouse spent funds from the marital estate, which can include earnings, and your spouse was contemplating divorce when he or she spent funds to 1) cheat 2) while cheating or 3) trying to cheat, you may have a claim for dissipation of assets, a form of relief that is arguably a vestige of fault based divorce. I have been on both sides of dissipation cases. My message is the same to clients, cheater or cheatee, that inasmuch as infidelity itself isn’t a basis for relief, the Court could very easily rule money spent by the cheating spouse is marital property and order the cheating spouse to restore the other spouse to a portion of the funds spent, purchase by purchase, if the Court finds the criteria exist for dissipation.
Leaks like the Ashley Madison hack are certainly one way to discover a cheating spouse, but in my experience a cheater will reveal himself or herself much more organically. In a classic case, a spouse found a receipt for a lovely piece of expensive jewelry her husband didn’t give to her. Another spouse paid rent and utilities for the lover, uncovered during a review of online bank statements. Spouses often share passwords and get so caught up in the affair (or want to get caught so much because they don’t have the courage to file for divorce) the cheating spouse forgets to change a password to a social media account or even an account in “the cloud” and BoomChickaWowWow – busted.
Because fault isn’t necessary to file for a divorce in Kentucky, it doesn’t mean infidelity doesn’t cause collateral damage to the most precious parts of many divorce cases – the parties’ children. In a tongue in cheek article written about the Ashley Madison leaks, a popular magazine advised kids not to input their dad’s email account to check if he’s cheating. Funny if you’re older, heartbreaking for the younger children, who may be incredibly embarrassed by the affair their friends know you’re having but you’re too scared or cowardly to admit or address.
Your kids should not be penalized because you chose to stay married and cheat simultaneously. Cheating and divorce may inevitably affect the children and may even uproot them, but should not be a topic of discussion between either spouse and the children (without therapist intervention and oversight). There is no statute that prohibits a parent from disparaging another parent or from spewing every character defect of the other parent at the children, including evidence of cheating. Yet, common sense, seemingly invisible in these situations, dictates restraint to avoid harm to kids that may reverberate throughout their lives and their primary relationships, or lack thereof.
No matter how much money you throw at it or how far you run from it, broken trust is slow to heal. Whether web site hacks or busybodies reveal a cheater, call someone to pick up the kids, talk it out with a therapist, schedule a consult with a lawyer and do what you can to stay sane. If you’re lucky there are both marital assets to divide and a paper trail to prove a dissipation case.
Receipts from Ashley Madison? Petitioner’s Exhibit One, your Honor.
A. Holland Houston has practiced family law in Kentucky since 1997. She is a graduate of UofL Law School and UK Journalism School in 1990, she won the KBA’s Nathaniel Harper award in 2014 for her work to promote diversity in the practice of law, is co-founder and co-chair of the Human Rights section at the LBA.