How Does Infidelity Affect Divorce Mediation?

In the wake of the scandal surrounding the affair-seeking site, Ashley Madison, a lot of discussion has ensued about infidelity and divorce.  Clearly, infidelity is one of the factors leading a couple to pursue a divorce or separation, but how does it impact the actual process?

In many states, like Arizona, there are no-fault divorce laws; meaning, the reasons for seeking a divorce, in general, are not supposed to impact the division of assets and debts or the amount of spousal maintenance.  So, in a Phoenix court, a judge would likely not be interested or swayed by mention of affairs or infidelity.  In divorce mediation, on the other hand, it is not uncommon for the person who cheated to feel guilty and the spouse, who is often hurt and angry, to capitalize on such feelings of guilt.  This may lead to some unusual agreements.

In my divorce mediations, I usually point out this dynamic when I sense it.  An agreement bred out of guilt can typically end up in an agreement that one spouse regrets and to which he or she may not abide.  Also, although there is no question cheating can cause significant pain and damage to a marriage, there are often other underlying issues in the marriage that have led up to the divorce.  Infidelity is usually not the “cause” of a divorce.  According to marriage therapists, there are typically deeper, more complex issues that have already caused the marriage to be in trouble and that may have even led to the infidelity.

Nevertheless, whether the main cause or not, infidelity can be the stimulus that triggers one or both spouses to pursue divorce.  Therefore, it may be important for feelings to be acknowledged and motivations to be examined in divorce mediation discussions so that each person has the tools to move forward and heal.  In my mediation sessions, I do not ask a couple their reasons for divorce and they do not ever have to disclose them to me.  However, if it is brought up, we try to have open, honest conversations about what this means for each of them and the family in the future.  By keeping the lines of communication open during divorce mediation, reconciliation is always possible.  And, if not, at least couples can divorce with compassion and dignity.

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