Short answer: Probably not. The division of property in a divorce proceeding is based on the notion of “equitable distribution,” meaning that the parties are awarded a just proportion of the property belonging to the marriage (the “marital estate”). Courts do NOT take into consideration marital misconduct (e.g. cheating) when determining what is equitable.
The division of property in a divorce requires an analysis as to which property belongs to Spouse A, which belongs to Spouse B, and which belongs to the marital estate. Spouse A is entitled to Spouse A’s property, Spouse B is entitled to Spouse B’s property, and both spouses are entitled to an equitable (i.e. fair) distribution of the property of the marital estate.
Determining whether property belongs to Spouse A, Spouse B, or the marital estate, requires a more nuanced analysis that will be covered in a future blog post.
As to the division of the marital estate, the relevant law states that the court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors….”
“Well that doesn’t seem fair,” you say. “What if my husband spent thousands of dollars during the marriage on his mistress?”
That is different. Now we are talking about not just the act of infidelity, but rather one of the spouses using marital funds for a purpose unrelated to the marriage. More technically, in that case, we are talking about what the courts call “dissipation.” Dissipation is the “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown….”
If there is dissipation, the court will order that the money is returned to the marital estate before an equitable division takes place.
So, for example, let’s say that the marital estate is worth $900,000. During the divorce trial it is proven that Spouse A spent $100,000 on his mistress during the last three years. The court also finds that that an equitable distribution in the case would be a 50/50 split of the marital estate. Accordingly, Spouse A will be ordered to return the $100,000 to the marital estate thus raising its value to $1,000,000. The marital estate would then be divided 50/50 leaving $500,000 for each spouse.