Divorce and Infidelity

In the wake of scandals involving Retired Four Star Army General David Petraeus and Marine Corp. General John Allen, many people are asking, what are the legal consequences when there exists evidence of “infidelity.”  Infidelity is usually defined as the consummation of one or more sexual acts between a married individual and an individual outside that marriage.

The Petreaus story has all the makings of a Hollywood movie.  These highly publicized cases often times end up in Divorce court. Whether a judge in a particular case can or ultimately does consider evidence of marital misconduct, remains a question that will depend upon the specific law in the state that has jurisdiction over the parties. Clearly, extra-marital relationships are one of the leading causes that results in parties who seek to divorce. When an extra-marital relationship or affair occurs in a marriage, many states will permit that kind of evidence in a parties’ initial divorce petition. The proof of such misconduct will be for a court to determine in the specific state where the case is filed.  Some examples of the most common types of divorce cases involving “fault” for marital misconduct are as follows:

  1. Domestic Violence: Situations where one of the parties has been physically or emotionally abused as defined in the criminal laws of that particular state;
  2. Alcohol or Drug Abuse: These are cases where one, or possibly both of the parties have had a history of alcohol abuse or drug addiction or abuse. Many such cases also involve arrests or convictions for crimes such as Driving Under the Influence or Possession of a Controlled Substance;
  3. Marital Infidelity: The fact that one or both parties has been unfaithful or had sexual affairs often times results in the kind of nasty divorces that draws public attention, such as the cases in the past few years involving Demi Moore and Ashton Kutcher or Arnold Schwarzenegger and Maria Shriver-Kennedy. The financial impact to the marital estate is a major component of these kinds of cases;
  4. Sex Crimes or Other Criminal Activity: These kinds of misconduct are based upon a party’s arrest and/or conviction for violations of criminal laws. When a parent is arrested or charged with a sex crime that requires registration as a “Sex Offender” there will almost certainly be an impact to the custody and visitation rights that a parent may seek

Military tribunals or courts see a greater caseload involving the issue of marital infidelity than do most civilian courts. Military officers and enlisted personnel are subject to discipline when charges are brought due to a member’s involvement in an illicit relationship or charges based upon a sex crime during the course of service. These kinds of military proceedings are because of the high profile nature of the Patraeus and Lee scandals; there is a tremendous amount of public interest.  In the situation involving General Petraeus, the scandal resulted in a wide scale Congressional investigation that has already cost General Petraeus his post as Director of the Central Intelligence Agency (CIA).  As a highly decorated officer in the United States Army, General Petraeus served as the commander of American troops in Iraq and Afghanistan, before he was appointed by President Obama to head up the CIA.  When General Petraeus announced his resignation as Director of the CIA on November 8, 2012, the president praised the general’s years of service, sacrifice and patriotism. Those years of service are now tarnished by the general’s affair with his biographer, whom he purportedly met while the general was in charge of military operations in Afghanistan.  The lack of discretion in General Petraeus’ personal life is now the subject of public scrutiny and media hyperbole. For General Allen, the scope of the inquiry may very well reach the military court in addition to whatever action may occur in a civilian court.

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