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Where Ashley Madison Fits Into Divorce Law

Although evidence of a cheating spouse would have been more useful in a previous era of family law, it is far easier to get such evidence today with the rise of the internet and social media, and so such evidence continues appearing in divorce cases.
08/20/2015 03:10am ET | Updated August 19, 2016
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As more high-profile names surface among the millions of users of Ashley Madison, the hacked online dating service for married people seeking an extramarital affair, speculation continues about the divorce consequences for cheaters. So, what are they exactly?

As it turns out, the consequences would have been greater under previous family laws. For example, evidence of a cheating spouse would have been far more useful in the fault regime that dominated the U.S. before the 1970s. Back then, to initiate a divorce, a spouse would have to prove one of several fault grounds, and adultery was one of them. Now, a spouse can initiate a divorce in any state without proving fault on the part of the other spouse by invoking the state's stated no-fault grounds, such as irreconcilable differences or an irretrievable breakdown of the marriage.

Many states have extended their no-fault approach to property division. Thus, while previously a cheating spouse may have had to pay in the property division or alimony award for an extramarital affair, today many states do not take into consideration who caused the breakdown of the marriage when dividing a couple's property. Some states do consider economic fault in the division, if one spouse depleted or misused marital assets. This rule may be invoked depending on how much an Ashley Madison experience, or a resulting affair, cost.

When it comes to the custody of children of the marriage, the children's best interests dictate. Social mores and family laws do not recognize much of an impact of the parents' sexual activities on the children's best interests anymore, unless the sexual behavior is egregious enough to be deemed problematic for the children.

Although evidence of a cheating spouse would have been more useful in a previous era of family law, it is far easier to get such evidence today with the rise of the internet and social media, and so such evidence continues appearing in divorce cases. One survey found that Facebook is now cited in a third of divorces cases. In 2010, 81 percent of divorce lawyers surveyed by the American Academy of Matrimonial Lawyers saw an increase in the number of cases using social networking evidence in the last five years, with Facebook being the top source for online evidence. Ashley Madison might just give Facebook a run for its money.