110 E. Schiller Street, Suite 320, Elmhurst, IL 60126

Weiss-Kunz & Oliver, LLC312-605-4041


How Will Infidelity Affect an Illinois Divorce?

Posted on in Infidelity and Divorce

Elmhurst Divorce LawyersThere are many reasons why a couple may choose to end their marriage, but infidelity is one of the most common causes of the breakdown of a relationship. When one spouse engages in an extramarital affair, the other spouse will most likely feel betrayed, and the anger and sadness that they experience may lead to contentious disputes during the divorce process. Understanding the role that infidelity may play when addressing divorce-related issues, can help spouses make the right decisions that will allow them to resolve disputes and complete the process of dissolving their marriage.

To ensure that legal issues are addressed correctly during the divorce process, it is crucial to work with an experienced family law attorney. At Weiss-Kunz & Oliver, LLC, our lawyers work closely with divorcing spouses, ensuring that they understand their rights and the best ways to handle concerns related to infidelity and other matters that may affect their case. We help our clients determine how they can resolve disputes with minimal conflict, but we are also prepared to argue cases in the courtroom and pursue divorce litigation when necessary. Our goal is to help divorcing spouses complete the process of dissolving their marriage as efficiently as possible while also making sure they will be prepared for success in the future.

Addressing Infidelity When Filing for Divorce

When one spouse files a petition for divorce, they may believe that they will need to detail the reasons why they wish to end their marriage, and they may think that by laying the blame for the divorce on infidelity committed by the other spouse, this will provide them with an advantage during divorce proceedings. However, since a change to the laws in 2016, the state of Illinois no longer recognizes fault-based grounds for divorce. That is, a divorce petition will not state the specific reasons why a person wishes to end their marriage, and it will not make any claims about whether either party was to blame for the breakdown of the couple’s relationship.

Since all cases involving the dissolution of marriages are considered to be no-fault divorces, a divorce petition will simply state that the marriage should be terminated because of irreconcilable differences. This means that a couple’s relationship has broken down beyond repair, and it would not be in the best interests of the spouses or other family members to attempt to reconcile. This is meant to help avoid arguments over who was at fault for a marriage’s breakdown, which may reduce conflict during the divorce process.

Will Infidelity Affect the Division of Marital Property?

Matters related to property division are some of the most significant issues that a couple will need to address as they work to dissolve their marriage. In cases involving infidelity, one spouse may believe that because the other spouse was to blame for the divorce, that spouse should receive a smaller share of the marital estate. However, the principle of no-fault divorce applies to the division of property. Illinois law specifically states that marital property should be divided between spouses in a fair and equitable manner without considering “marital misconduct.” 

The decisions about how property should be divided will be based on multiple other factors, including:

  • Each spouse’s contributions to the marriage and the acquisition or preservation of property, including by earning income, performing household services, or making improvements to increase the value of a home or other property.

  • Each spouse’s economic circumstances, including the income they currently earn and their capacity to earn an income based on their education, experience, and skills.

  • Any issues that affect either spouse’s finances, including their age, health, work history, liabilities, and ongoing needs.

  • Either spouse’s desire to own the couple's family home or continue living in the home while maintaining primary physical custody of the couple’s children. 

  • The tax consequences that affect each spouse based on property they will own or other decisions made during their divorce.

  • Any obligations that a spouse may have from a previous marriage or relationship, such as child support or spousal support orders.

One of the only ways that infidelity may affect the property division process will be when a spouse is accused of dissipating marital assets. Dissipation involves the use of marital property for a person’s sole benefit and for purposes unrelated to their marriage or family. When they have engaged in an affair, a person may be accused of dissipating assets in multiple ways, such as by buying gifts for a lover, staying in hotel rooms, or taking trips. 

When a spouse makes a dissipation claim, they will need to show that the other spouse used marital funds improperly after the point when the couple’s relationship began to break down irretrievably. Generally, a spouse can only make a dissipation claim within three years after they discovered or should have known about the other spouse’s improper use of marital assets. If a dissipation claim is determined to be valid, the spouse who dissipated assets may be required to reimburse the marital estate for the money or assets they used for non-marital purposes, or they may receive a smaller share of marital property in a couple’s divorce settlement.

Spousal Maintenance and Infidelity

A person may believe that a spouse who committed adultery should be required to pay support to the other spouse. However, as is true for property division, decisions about spousal maintenance cannot be based on marital misconduct. Spousal support is not meant to be a punishment for any actions that a person took during their marriage or a penalty for a spouse who was at fault for a divorce. Instead, it is meant to help spouses maintain the standard of living that they were used to while they were married.

Generally, spousal maintenance will only be appropriate in situations where one spouse earns a higher income than the other. If the spouse who earns a lower income would be unable to fully meet their own needs and cover their ongoing expenses, they may ask to receive financial support from the other spouse. Factors that may be considered when determining whether spousal maintenance is appropriate may include:

  • Each spouse’s income and financial resources, including the marital property they will receive. In some cases, spouses may agree that a spouse will receive a larger share of the marital estate instead of receiving ongoing spousal support.

  • Each spouse’s needs and how they are affected by issues such as their age, health, and liabilities.

  • Any impairments to the lower-earning spouse’s income-earning capacity due to the choice to focus on family or household responsibilities during their marriage instead of pursuing career opportunities.

  • The amount of time the lower-earning spouse will need to pursue education or training that will allow them to increase their income-earning capacity.

  • Contributions that the lower-earning spouse made during the couple’s marriage to help the other spouse increase their income or further their career, such as using marital funds to pay for a spouse’s education or performing the majority of childcare and other household duties so that the other spouse could focus on work.

Child Custody in Cases Involving Infidelity

Child-related issues can often lead to contentious disputes during the divorce process, and one parent may believe that the other parent’s infidelity indicates that they are not interested in family responsibilities. A parent who blames their spouse for their divorce may believe that the other parent does not deserve to have a close and continuing relationship with the couple’s children. However, blame for a divorce or actions by a parent that did not affect their children will generally not be factors considered when making decisions about child custody.

When determining how parents will share in the allocation of parental responsibilities and the amount of parenting time that children will spend with each parent going forward, these decisions will be based on what is in the children’s best interests. Most of the time, it is best for children to have close relationships with both parents. Depending on the level of involvement each parent had in raising their children during their marriage, they may be able to equally share in decisions about how children will be raised, and children will be able to spend reasonable amounts of time in both parents’ homes.

There are a few circumstances in which infidelity may be considered when addressing child custody matters. The parents’ past level of involvement in making child-related decisions and engaging in childcare activities can be an important factor in these decisions. If a parent had withdrawn from their family while pursuing an extramarital affair and focused on their relationship with a new partner instead of being involved in their children’s lives, these actions may play a role in child custody decisions going forward. 

In some cases, issues related to a parent’s new partner may be raised when addressing child custody matters. A parent may raise concerns about children’s health, safety, and well-being when they are staying in the other parent’s home. For example, if a parent’s new partner has a criminal record or is a registered sex offender, the other parent may ask for restrictions on child custody or parenting time to ensure that children will be safe from potential harm.

Can Prenuptial and Postnuptial Agreements Address Infidelity?

While infidelity will not play a significant role in many divorce cases, there are some situations where a couple may have a prenuptial or postnuptial agreement in place that addresses this issue. A couple may choose to create a prenup before getting married that makes decisions about how a divorce will be handled if one spouse cheats. During their marriage, a spouse who has committed adultery may agree to enter into a postnup to provide reassurances to the other spouse that they will remain faithful, or this type of agreement may be used to address potential infidelity.

Marital agreements will generally address financial issues during a couple’s divorce. They may specify how marital property will be divided, or they may state whether spousal maintenance will be paid by one spouse to the other, as well as the amount and duration of these payments. Infidelity may be a factor in these decisions. For example, an agreement may state that a spouse will not be entitled to receive spousal support if they commit adultery, or a prenup or postnup may detail how certain marital assets will be allocated in cases where infidelity has occurred.

The terms of a prenuptial or postnuptial agreement will usually be followed during a divorce unless an agreement is determined to be invalid or unenforceable. In some cases, a person may claim that a prenup or postnup is unconscionable because it unfairly favors one spouse. However, these types of challenges can usually only be made if a person did not receive a full disclosure of their partner’s finances and did not waive their right to receive this disclosure.

Contact Our DuPage County Complex Divorce Lawyers

Issues related to adultery and infidelity can lead to a great deal of conflict during the divorce process, and spouses will need to make sure they understand their rights and their options for resolving disputes. Our family law attorneys make sure our clients fully understand how to address these issues, minimize conflicts as much as possible, and create workable divorce settlements. To get legal help with divorce-related issues that may be affected by infidelity, contact our Elmhurst family law attorneys at 312-605-4041.




Facebook Twitter
  • cba
  • dcba
  • isba
  • lcba
  • lod
  • super lawyers
  • 10 best
  • asla
  • collaborative
  • expertise
  • AACFL Found Member
  • Fellow of Collaborative Divorce Illinois for 2023
Back to Top