What to Do if Your Spouse Is Having an Affair and You Are Considering Divorce
Discovering that your spouse may be having an affair can change the way you look at your marriage almost overnight. You may feel angry, betrayed, confused, or unsure whether the marriage can continue. At the same time, decisions made during the first days or weeks after learning about an affair can affect your finances, your children, and your position if a divorce is ultimately filed.
I encourage clients in Schaumburg to separate the emotional issues surrounding infidelity from the legal issues that Illinois courts actually consider. Before moving money, leaving the marital home, confronting the other person involved, or making major decisions involving the children, it is important to understand what an affair does and does not mean under Illinois divorce law.
Understand That Illinois Is A No-Fault Divorce State
One of the first things I explain is that Illinois does not require a spouse to prove adultery in order to obtain a divorce. Under Section 401 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/401, the legal basis for dissolution is that irreconcilable differences have caused the irretrievable breakdown of the marriage and reconciliation has failed or would not be practical and in the family’s best interests. If spouses have lived separate and apart for at least six continuous months before entry of the divorce judgment, the statute creates an irrebuttable presumption that the irreconcilable-differences requirement has been satisfied.
This means I generally do not need to prove that your spouse committed adultery to file or obtain a divorce. Evidence of an affair therefore should not become the central focus of the case unless the conduct connects to an issue the court is legally permitted to consider.
That distinction can save considerable time, money, and emotional energy. A spouse may have behaved terribly within the marriage, but divorce court is primarily concerned with resolving property, financial support, parental responsibilities, parenting time, and related legal matters.
Protect Your Financial Information Before Making Major Decisions
If you are considering divorce, I recommend beginning with a clear picture of the household finances. Gather copies of bank statements, retirement account statements, credit-card statements, tax returns, mortgage records, investment accounts, business records, insurance policies, loan documents, and other information showing marital assets and debts.
Do not hide assets, empty joint accounts without legal advice, destroy records, or attempt to interfere with your spouse’s finances. Those actions can create problems later.
Instead, preserving legitimate financial records can help identify what property exists and whether marital money may have been spent for purposes unrelated to the marriage.
Illinois generally defines marital property under 750 ILCS 5/503 as property acquired by either spouse during the marriage, subject to statutory exceptions. When dividing marital property, the court distributes it in just proportions after considering the statutory factors. The statute specifically provides that property division occurs without regard to marital misconduct.
Therefore, an affair by itself usually does not mean that the faithful spouse automatically receives a larger percentage of the marital estate.
Determine Whether Marital Money Was Spent On The Affair
Although adultery itself generally does not control property division, the financial consequences of an affair can be important.
Suppose your spouse spent thousands of dollars on hotels, airfare, jewelry, restaurants, vacations, rent, gifts, or other expenses associated with another relationship while the marriage was breaking down. Those expenditures may raise a potential claim involving dissipation of marital assets.
Under 750 ILCS 5/503(d)(2), dissipation is a factor a court may consider when dividing marital property. Illinois law also imposes procedural requirements for asserting a dissipation claim, including notice requirements and time limitations. The notice generally must identify when the marriage began undergoing an irretrievable breakdown, the property allegedly dissipated, and the period during which the dissipation occurred.
This is why financial records can matter considerably more than photographs proving that an affair occurred. If marital funds were diverted for a non-marital purpose during the relevant period, I want to identify those expenditures and determine whether a legally supportable dissipation claim exists.
Do Not Assume An Affair Determines Spousal Maintenance
Clients are sometimes surprised to learn that infidelity ordinarily does not determine whether someone receives maintenance, sometimes called spousal support or alimony.
Under 750 ILCS 5/504, an Illinois court may award maintenance after considering statutory financial factors, and the statute expressly provides that maintenance is determined without regard to marital misconduct. Factors include matters such as the parties’ income and property, needs, present and future earning capacities, duration of the marriage, age, health, employability, liabilities, and other economic circumstances.
As a result, I would not expect a court to deny maintenance simply because the requesting spouse committed adultery. Likewise, a spouse who was betrayed is not automatically entitled to maintenance as compensation for the affair.
Maintenance is fundamentally an economic issue.
Protect Your Children From The Conflict
When children are involved, one of the most important steps you can take is to keep them away from adult disputes.
Avoid questioning your children about the affair, asking them to spy on the other parent, showing them messages or photographs, or discussing intimate details with them. Children should not be placed in the position of deciding who was right or wrong within the marriage.
Illinois law now uses the terms “parental responsibilities” and “parenting time” rather than relying exclusively on older terminology such as custody and visitation.
Under 750 ILCS 5/602.5, significant decision-making responsibilities are allocated according to the child’s best interests. These responsibilities can involve education, health care, religion, and extracurricular activities.
Under 750 ILCS 5/602.7, parenting time is likewise determined according to the child’s best interests. The statute directs courts to consider relevant circumstances relating to the child and the parents rather than simply punishing one parent for marital misconduct.
An Affair Does Not Automatically Cost A Parent Parenting Time
A parent does not ordinarily lose parenting time merely because he or she had an affair.
The central legal question is how a parent’s behavior affects the child.
For example, an affair could become relevant if the circumstances expose a child to dangerous people, inappropriate conduct, instability, substance abuse, serious conflict, neglect, or other circumstances affecting the child’s physical or emotional welfare.
Illinois law presumes parents are fit, and restrictions on parenting time generally require significantly more than proof that one spouse was unfaithful. Section 602.7 provides that restrictions are not imposed unless the applicable standard involving serious endangerment is established.
Section 603.10 of the Illinois Marriage and Dissolution of Marriage Act permits a court to restrict parental responsibilities after a hearing when the court finds by a preponderance of the evidence that a parent’s conduct seriously endangered the child’s mental, moral, or physical health or significantly impaired the child’s emotional development. Potential restrictions can include supervision, changes to parenting time, limits on contact with particular people, or other conditions needed to protect the child. 750 ILCS 5/603.10.
Therefore, I focus on specific effects on the child rather than the moral character of the affair itself.
Be Careful About How You Gather Evidence
It may be tempting to immediately begin searching your spouse’s phone, email accounts, social-media accounts, cloud storage, or private messages. I strongly recommend discussing evidence collection with an attorney before doing anything that could involve unauthorized access to private accounts or communications.
Evidence that is legally available to you can often be preserved without taking unnecessary risks. Bank records, jointly accessible financial statements, publicly available social-media posts, receipts, photographs already lawfully possessed, and information obtained through formal discovery may all be relevant depending on the circumstances.
Divorce litigation provides legal procedures for obtaining records. Trying to become your own private investigator can create additional disputes that distract from the issues that actually determine the outcome of the case.
Consider The Consequences Before Leaving The Marital Home
Learning about an affair can create an understandable desire to leave immediately. Whether moving out makes sense, however, depends on the circumstances.
Leaving the home does not automatically mean you surrender your ownership interest in marital property, but it can affect practical issues involving the children’s schedules, possession of the residence, household expenses, and negotiations over temporary arrangements.
If there is abuse, threats, stalking, or a genuine safety concern, personal safety takes priority and additional legal protections may be appropriate. Otherwise, I generally recommend obtaining legal advice before making a permanent change to living arrangements.
Keep Communications Controlled And Businesslike
Divorce cases are frequently made more difficult by text messages and emails sent during moments of anger.
Assume that anything you write could eventually be shown to attorneys, a guardian ad litem, a parenting professional, or the court. Threatening messages, insults, repeated accusations, or statements about keeping the children away from the other parent can become significant distractions.
When communication is necessary, I recommend keeping it brief, factual, and focused on practical matters. If children are involved, communications should primarily concern schedules, school, medical issues, activities, and other parenting responsibilities.
Illinois Divorce Frequently Asked Questions
Does Adultery Give Me An Advantage In An Illinois Divorce?
Usually not by itself. Illinois divorce law is based on irreconcilable differences rather than marital fault, so I generally do not need to prove adultery to obtain a divorce under 750 ILCS 5/401. Property division under 750 ILCS 5/503 and maintenance under 750 ILCS 5/504 also generally occur without regard to marital misconduct.
The affair can nevertheless become financially relevant if your spouse used marital assets to support the relationship. Large charges for trips, gifts, hotel rooms, rent, entertainment, or similar expenses may justify investigating a possible dissipation claim. I therefore look beyond the affair itself and determine whether the conduct produced financial consequences that Illinois law permits the court to address.
Should I Confront My Spouse About The Affair Before Speaking With A Lawyer?
You are not legally required to confront your spouse before consulting a divorce attorney. In many situations, I prefer that a client first understand the financial and parenting issues that may arise before starting a confrontation that could escalate tensions.
Can My Spouse Lose Parenting Time Because Of An Affair?
An affair alone normally does not cause a parent to lose parenting time. Illinois courts allocate parenting time according to the child’s best interests under 750 ILCS 5/602.7. The court is concerned primarily with parenting ability and the child’s welfare, not with punishing a parent for being unfaithful.
The circumstances surrounding an affair may become relevant if they affect the child. If a parent’s conduct seriously endangers the child’s mental, moral, or physical health or significantly impairs the child’s emotional development, Section 603.10 allows the court to impose appropriate restrictions after the required findings. Those circumstances are considerably different from merely proving that a parent was romantically involved with another adult.
Speak With The Law Office Of Fedor Kozlov About An Illinois Divorce Involving Infidelity
Discovering an affair can make it difficult to separate emotional reactions from decisions that may affect your finances, property, and children for years. I help clients understand which facts matter under Illinois divorce law and which issues are unlikely to influence the court. Whether you are considering filing for divorce, responding to a spouse who has already filed, addressing parental decision-making or parenting time, evaluating maintenance, dealing with paternity issues, or resolving another family-law dispute, developing a thoughtful legal strategy early can help protect your interests.
The Law Office of Fedor Kozlov represents clients on either side of divorce proceedings and other family-law matters in Schaumburg and throughout Chicago, Illinois. If your spouse is having an affair and you are considering divorce, contact our Schaumburg divorce law attorney at the Law Office of Fedor Kozlov by calling (847) 241-1299 to receive a consultation.
