When someone asks whether an affair still matters in a divorce, the answer isn’t as simple as yes or no. In states like Illinois, where divorce is based on “no fault,” the legal system no longer weighs infidelity the way it once did. But emotionally and practically, affairs can still have a significant impact on how a divorce unfolds.
The Legal Perspective: Affairs Don’t Determine Outcomes
Legally speaking, Illinois is a no-fault divorce state. This means that the court doesn’t assign blame for the breakdown of the marriage. Affairs are not taken into consideration when it comes to the division of property, awarding support, or making final decisions in most standard legal proceedings. Judges focus strictly on what is required to finalize the divorce, child support, custody schedules, and equitable distribution of marital assets.
So, if you’re expecting the court to punish a spouse for having an affair, that is unlikely. Judges are not interested in the emotional grievances that led to the divorce, they are interested in resolving the legal issues efficiently and fairly.
But Affairs Still Matter… Just Not in the Way You Think
While the court may not care about an affair, the people involved in the divorce certainly do. Infidelity can deeply color how one or both parties behave during the process. A betrayed spouse may find it hard to approach negotiations with a calm and rational mindset. The anger and pain from the affair can seep into discussions about parenting time, asset division, and support.
Affairs can also impact the case if the unfaithful spouse is openly in a new relationship, especially if that person is being introduced to minor children. This will complicate co-parenting conversations and generate additional conflict. In these cases, the emotional weight of the affair indirectly affects the outcome.
Financial Implications: Dissipation of Marital Assets
One area where an affair can have a legal impact is finances. If a spouse used marital funds on their new partner, buying gifts, taking trips, or covering expenses, that money can be considered “dissipation of marital assets.” In these cases, the court can factor that spending into financial decisions. But proving dissipation requires a detailed financial review and can become costly and contentious.
Affairs: Why Out-of-Court Options Make More Sense
Since courts largely ignore the emotional fallout of an affair, couples often benefit from resolving their divorce through either the Collaborative Divorce process or Mediation. In those settings, everything that matters to the parties, including the emotional impact of an affair can be addressed. Collaborative Divorce and Mediation creates a space where hurt feelings can be acknowledged, which can help both sides move forward more constructively.
So simply put, while an affair doesn’t “matter” to a judge in a courtroom, the way some people hope, it still affects the process. And if it’s not addressed in a healthy, productive way through either Mediation or Collaborative Divorce, it can derail even the simplest of divorces.
The Law Offices of Patrick Markey, P.C., are located at 180 Stetson Avenue, Suite 3500 in Chicago, Illinois. You may call us at 312-223-1764.
Patrick Markey is a Chicago based attorney who is an advocate of no court divorce options. He believes Collaborative Divorce and Mediation create better outcomes to your divorce process.
Mr. Markey is a member of Super Lawyers, an elite group of the top 5% of top lawyers (https://www.superlawyers.com). He is also listed as a top divorce lawyer by AVVO (https://www.avvo.com) and is a fellow of Collaborative Divorce Illinois (https://collaborativedivorceillinois.org), as well as a member of The Chicago Bar Association (https://www.chicagobar.org)