Things That Can (And Can't) Affect Your Divorce Settlement

Upon filing for divorce, the spouses must list any demands they may have on property they own. Later, the court requires a list of all assets held by the couple. The ultimate goal is to divide the marital property in a way that is equitable. The equitable rule is what courts go by and not necessarily by the rule of which spouse morally deserves the property. So, contrary to belief, your divorce settlement may not be affected by an accusation of adultery. There are other factors, however, that may come into play.

Prenuptial Agreements and No-Fault Divorce

An exception to the equitable rule is the prenuptial agreement. Couples create these prior to the marriage in order to ensure that each spouse takes away from the marriage what they brought in. There is no need for court intervention, except in cases where one spouse contests the terms of the agreements. When a prenuptial agreement is involved, an equitable division is unnecessary. A no-fault divorce works similarly. The couple decides how the assets will be divided before filing for divorce. They sign an agreement and submit it to the judge to make it official. All property is then divided according to the agreement.

Community Property States

In community property states, the courts try to streamline the property division process by dividing all assets in half. An allegation of adultery does not affect the settlement in these cases either.

Bad Behavior Penalties

A few states do allow the bad behaviors like adultery to affect the divorce settlement. In the state of Georgia, you can lose an alimony award if adultery is proven. In the states that allow bad behaviors to affect the settlement, the petitioner has to prove that the acts were not a hardship on the spouse. Some attorneys attack the spouse with a counterclaim of bad behavior. Regardless of who makes the first accusation of bad conduct, any claim must be proven.

The overwhelming majority of courts only allow bad conduct claims such as adultery to be listed as grounds for divorce. Equitable division of property is ensuring the property is divided in a way that benefits both spouses, no matter how immature they act.

"Irreconcilable Differences," Legal Services New Jersey.

"Divorce Myths," Divorce Source.