Fairly often I am asked whether one spouse’s extra-marital affair has an impact on a divorce proceeding.  The answer is “it depends.”

First, let me say that I have great empathy for a spouse who realizes that he or she has been cheated on.  This knowledge can be devastating.  Many people go to marriage counseling to try to restore the relationship, but often the damage done is irreversible.  In fact, when one spouse “overlooks” the fact that the other spouse has cheated, that spouse could unwittingly be teaching the cheating spouse that it is “okay” to cheat.  I am familiar with cases where one spouse gets caught and begs for forgiveness.  The other spouse forgives, they resume their “marriage,” only for the other spouse to find new evidence that the cheating spouse is still cheating.

Generally speaking, the fact of the extra-marital affair, in and of itself, is irrelevant to a divorce in Minnesota.  Minnesota is a “no fault” divorce state, which means that you do not have to prove that a spouse is “at fault” before you can get divorced.  All you need to tell the court is that there has been an irretrievable breakdown of the marriage, and the court will grant the divorce.

However, the extra-marital affair is relevant if the cheating spouse spent marital money on the affair.  I am aware of spouses who have established secret checking accounts, cashed in retirement assets, and gone into significant credit card debt in order to carry on an illicit sexual relationship that their wife or husband does not know about.  In these cases, the wronged spouse has the right to be reimbursed for the money spent on the affair. 

The extra-marital affair is also relevant if the person the cheating spouse is seeing could have a negative impact on the parties’ children.  I am aware of cases where a spouse cheats with someone who is a domestic abuser, an alcoholic, or a criminal.  A person like this should probably not have unfettered contact with the parties’ children.  I once had a case where I had to obtain a court order preventing all contact between one spouse’s significant other and the parties’ children.  I was successful in doing this, even though the spouse had moved in with the significant other.  As long as the children were around, the significant other (who was a domestic abuser and a criminal) had to stay away from the cheating spouse’s home.

If you have any questions about this or any other Minnesota divorce issue, feel free to call me at (952) 270-7700.