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Settling After the Ultimate Betrayal

Kevin Hickey

Many consider it the ultimate betrayal in a marriage—adultery. All divorces are difficult, but those involving adultery seem to raise emotions to a whole other level. The first thought that comes to many people’s minds is to get as much as possible from the divorce settlement because of unresolved hostility and resentment. Of course, as your attorney I want you to get everything you deserve to help you move forward, however, many times a settlement may be the answer. Here’s why:

  1. Years ago, the courts strongly frowned upon adultery. These days, that is not the case in most states. Although the marriage vows have been betrayed, infidelity doesn’t necessarily entitle you to as much as you may think nowadays. However, Arkansas is not a “no-fault” state, meaning you must have a valid reason defined by the state for the divorce. The grounds for divorce currently accepted by the state are adultery, the defendant committed a felony, habitual drunkenness and living separate and apart continuously for a minimum of 18 months without reconciliation.
  2. With that being said, adultery can have some influence on property settlement and spousal support. The betrayed spouse can often use it as leverage to continue living his/her lifestyle that he or she has grown accustomed to during the marriage.
  3. If you have children together, adultery typically does not have any effect on child custody if the unfaithful spouse is otherwise a good parent.
  4. There are occasions when the betrayed spouse may be entitled to a large sum of money if it is proven the unfaithful spouse used a considerable amount of money on the affair. The other spouse may be able to negotiate the amount of money into your settlement.

Another reason a settlement might be in your best interest is because Arkansas courts have decided that marital misconduct may be something that “meaningfully relates to need or the ability to pay.” One example of this is the ruling in, Wright v. Wright, 302 Ark 157 (1990). In this case, both spouses accused the other of adultery. The final ruling by the Arkansas Supreme Court found that adultery was irrelevant because it didn’t reflect on either the need for alimony or the obligor’s ability to provide it. As with any case, none are alike and many times adultery has been used as a reason to help decide how much alimony to award and for how long. The key to the decision is that the adultery must meaningfully relate to the obligee’s (the person receiving support) need or the obligor’s (the person paying support) ability to pay it.

We often get the question if a spouse can be sued for causing the other spouse a broken heart. The courts used to recognize this as alienation of affection, but Arkansas repealed this years ago. Unfortunately, there is no law that can soothe a broken heart.

Remember, a settlement is only accomplished if both parties are able to put feelings aside. All of these things can be used for leverage in a settlement if the demise of the marriage was due to adultery. It is often in all parties’ best interest to avoid a messy and drawn-out divorce in court. A settlement requires having all information and evidence in order to be successful. Kevin Hickey Law Partners is ready to work for you and what is in your best interest. Many times this can be accomplished in a divorce settlement, but sometimes a couple just cannot reach a mutual agreement requiring the courts to divide the assets, spousal support and child custody, and visitation. Whatever the case may be, Kevin Hickey Law Partners is here for you.