The Legal Side of Infidelity

"Send Lawyers, Guns, and Money, the $#!* has Hit the Fan"
Warren Zevon

As a Christian, I always understood marriage to be a biblical union of two people, a part of God's plan for companionship as first illustrated in the Garden of Eden. Common text book definitions note a union of two people or a combination of two or more elements. While its roots are biblical, our society recognizes it as an institution, inherent with legal rights and responsibilities.

As we all know, healing and reconciliation in this arena takes significant time and work. The problem is, the legal system we use to institutionalize marriage does not give incentive to allow time to "wait and see." While I have great appreciation for the request of AR early on in recovery to commit to giving the "stay or go" decision time, as an attorney I was often overwhelmed by the fact that my legal position in a divorce was at its best in the moment of discovery. In short, my ability to use adultery as a defense to claims of spousal support or character issues in custody diminished with each day I allowed to pass after discovery. Having sex with my wife could be seen as reconciliation by some courts. While I wanted to believe we might have a future, I couldn't "un-know" what I knew to be true as an attorney any more than I could undo the fact we were facing this destruction.

About eight months into recovery my wife finally began to show an attitude of being "all in." She became truly committed to her own healing and was showing me she was willing to do whatever she could to salvage what was left of our marriage. While I was already deep in my individual work towards healing me, this seemed like the beginning of the journey towards healing us.

I want to be clear, I always wanted to see "us" work. I've never wanted a divorce. In many ways, discovering her affair felt more like finding her passed out intoxicated by a dumpster than being jilted by another lover. She was sick and in need of help, and I knew there was so much more to her than her actions were showing. However, with my marriage pushed towards the literal edge of a cliff, it would have been irresponsible to not have done what I could to protect myself and my child's own safety and future well-being.

In hopes of encouraging me to give it time, my wife was full of promises of how we would amicably divide assets and not seek any support if I decided to end the marriage. At that time, I did not know much with certainty. What I did know is she had been capable of going to great lengths to lie to me, for a long time, even when I thought that was not possible. Being an attorney, I knew there was great risk in giving the future of our marriage "time." These fears were exacerbated by the fact poverty was a real issue for me as a child, and the threat of losing what wealth I had accumulated worked strongly against efforts to build hope. Countless times I have seen people disappointed in my office when their understanding of someone else's promises and intentions did not pan out. While I appreciated her commitments to me to be "fair" and equitable if we split, I also knew the worst in people often comes out when they start worrying about how to pay the light bill. The real possibility of divorce meant her gloves could come off at any time, and I was tired of feeling naïve and exploited.

I practice law in a small area in the south. While I knew a family law attorney I often referred clients to with success, the idea of calling her and revealing all my personal dysfunction was… well… humiliating to say the least. I truly thank God, I had the strength to swallow my pride in that moment and make the call. Now that I am over two years out, I can look back and see that decision was instrumental in giving me the space I needed to give my marriage a real chance.

As we all know, fear will lie and distort your ability to act rationally. Marriage is seen by the eyes of the law as a contract, and as such there are certain inherent rights and obligations to anyone who enters. These rights are complicated and difficult to navigate, especially while trying to make room to be emotionally vulnerable to reconciliation. Some states consider adultery in determining matters of support or custody, some do not. Some judges interpret laws differently within a single jurisdiction. If I want to try separation should I leave or kick her out? The decision could affect my ability to seek custody, to keep a house, or other assets. The point is rules vary greatly and many of the decisions we face have lasting consequences, whether we realize it at the time or not.

My state is one that honors the enforcement of post nuptial agreements. As a result, my wife and I were able to come to terms for dividing our lives if we ended up divorcing. No longer did I feel the stress of losing the grounds of adultery, should this attempt at reconciliation not work. This helped give me the ability to open up vulnerably to the idea of submitting myself again emotionally to my wife. I think it also fully opened my wife's eyes to all the security she had given up by her actions. Saying you understand is one thing, signing an enforceable contract expressing your understanding is another altogether. The law inherently affords you rights to your marriage so why not tailor those rights to your specific circumstances. Just as I do not think I could've successfully navigated a path to emotional healing without good therapists, my rights could not have been fully protected while trying to recover without the help of good legal counsel.

As an attorney, I was lucky to have had the professional experience with colleagues to know who was best to consult. I know this is not so simple for others. Right after discovery, my wife and I sought counseling for the first time in our marriage. We bounced through several incompetent and incapable counselors before finally landing on good resources. It took time and money. I am afraid finding a lawyer can often be similar. However, the confidence of truly understanding your circumstances is worth the investment.

When dealing with infidelity, emotions are high; and clear, rational thinking is hard to come by. In this environment, you are drilled with many decisions that will have lasting and generational effects. While the expense of retaining counsel may seem high, the expense of rashly giving up rights can be incalculable.

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Wanting the marriage to work

I saw the writing on the wall earlier on in our relationship with divorce being the inevitable outcome. I gave him his freedom and he chose to come back. It’s been challenging work going through the depths of what has been revealed to be his SA. AR has helped both of us. Instead of spending the time, effort, emotions and money for a divorce, we are working on the relationship. This was a timely article for me today. Thank you for continuing to share your insights with AR. Journey forward.

Im glad it helped offer some

Im glad it helped offer some perspective. I hope your marriage continues a path of growth and restoration.


I considered the idea of a

I considered the idea of a post-nup but did not pursue, I felt it was in a way a chain to keep her from being a cheater again....and I didnt want anyone forced to be faithful to me , if her true self was a cheater inside then she should be whom she truly is and I would know who she really is and walk away....

Thank you for the reply

I appreciate greatly those sentiments. No doubt my wife, and my wife alone, is the only one that will decide if she heals. For me, a post nup was about protecting me, and what I had worked hard over the last few decades to build, from further destruction. Recovery is expensive, divorce even more so... Obviously, my wife was capable of making all kinds of commitments in life, then going back on her word. I didn't want to further risk my own financial security over a gamble on whether she would be motivated to heal herself. Protecting me really made it easier to lean back into the relationship for me without questioning my own motivations for staying.

To healing

A very informative and

A very informative and valuable blog, but as someone who is days away from a finalized divorce decree, my favorite part was the Warren Zevon reference.

I definitely feel like “I’m the innocent bystander, but somehow I got stuck, between a rock and a hard place, and I’m down on my luck”

Sometimes all you can do is

Sometimes all you can do is laugh... I am so sorry you find yourself in this spot. I have met some amazing people through this journey who ended up divorced AND healed into a person they always wanted to be, dare I say even liberated by the process. I pray that is the path you are on now.


New Baby

After 30 years of marriage and going through professional school together, financial sacrifices, paying back our school debts, raising and educating our children, each building our own successful professions and finally looking forward to retirement and the wonderful things we are going to do together, my 63 yo H told me that he had a 7 month affair with a 27yo employee. Their baby was born in July. He is working hard at his recovery, personal counseling, Hope for Healing, and is committed to do what ever it takes to reconcile. I have not yet decided what is best for me. I feel like if i work towards reconciliation I will be adding to the betrayal I have suffered by betraying my values and morals and to add insult to injury I will get to help pay his child support for the next 18 years, if he lives that long. A post-nuptial is definitely something I will look into immediately as I continue to take as much time as I need to decide on my future.

I hope it helps

I truly am sorry for what you are facing. I hope you find healing in your path soon. 10 years ago, very few states honored them. Now, the list of states that will enforce one through its court system has grown dramatically. I think the law is beginning to reflect that in certain circumstances, these agreements can be instruments of peace, harmony and reconciliation.


Finding Security

Thank you for sharing this. It’s the first time I’ve read about a first-hand experience with a post-nuptial agreement.

I was unfaithful and after the raw discovery of the affair, my husband immediately wanted to protect his assets. At first I thought it was selfish. I wondered why he didn’t want to immediately work on our marriage. I was very scared and very angry but I also began to understand why he wanted to protect what he had worked so hard for over the years. As we began to consult lawyers, and talk about our assets, my husband made it clear that he wanted it to be “what’s mine is mine and what’s yours is yours” (He has always had more assets than me if you look at it that way.) My attorney recommended that I NOT sign it. I signed it anyways. I wanted to do whatever it took to show him I wanted to make our marriage work and that I didn’t want to take anything more from him.

Soon I regretted signing it because he didn’t make any effort to work on our marriage. I consulted a different attorney and contemplated fighting the post-nup on the grounds of being coerced into signing it. (Because he also said it would help our marriage if I signed it.)

After many months of ups and downs, I finally decided to just leave well enough alone. I told him I wouldn’t fight the Post-Nup, I’d take what it said he’d give me and move on with my life.

The next day he came to me and hugged me and kissed me and said “Thank you. You don’t know how much that helps.”

It’s been about 6 months since then and although we aren’t near where I’d hoped we’d be (and he still refuses to get any kind of help or work on our marriage), the fighting has lessened and we actually do things together and enjoy it.

I don’t know if we will stay together or not. If I had it my way, we would, but I cannot control his feelings or decisions. I know that I will be fine whatever happens.

I think when something as earth shattering as infidelity happens, people need to do what is necessary to put safety and security back into their lives. If that means a post-nuptial agreement, then so be it.

I appreciate you insight

In our circumstances, we had talked through what divorce might look like financially a few months after d day. While I didn't want it, I knew that many promises she was making could be easily ignored if she chose to. I also knew the longer I gave "us" a chance, the weaker the protections her adultery gave me in the legal process. Divorce, like death and many other tragedies, can bring the worst and the best out in people. Putting it down in writing simply solidified our commitments to civility and fairness should the marriage not work.

Prior to the post nup, I really questioned whether I was choosing to stay out of fear of the financial consequences of divorce. I would like to have thought this had nothing to do with my desire to reconcile, but it is only natural for it to be somewhere in the equation for all of us. I have certainly learned that fear is given power when ignored, and the only way to conquer it is to h=face it head on. By settling the terms if it all blows up, it helped me begin to separate the insincere reasons for staying from the authentic reasons - my wife's true healing, a daily future with my children, a better life with a deeper understanding of myself and my wife. However, I suspect in a similar fashion to your husband, it continues to be a growth that is slow and gradual. Even now - over a year later - I still back pedal at times. As we all learn, this recovery process is definitely a marathon and not a sprint.


State of Texas honor post- nups?

Do you know if the state of Tx recognizes post-nups? Do you know anyone in Texas that can help me with this? I don't think the attorney needs to live in my city does he/she? Seems like most of this could be done over the phone and computer, especially these days. Sadly, after almost 40 years of marriage, I need one due to my husband's sex addiction behaviors, financial irresponsibility, and erratic job history......and my health issues (life altering neurological disorder) that make it almost impossible for me to work anymore. I have no idea what my rights or options are. He says he will sign one. I'd like to see if he will actually back that verbal agreement up with a fair and well worded written agreement. Thank you in advance for any help you're able to offer.

Each state varies in their

Each state varies in their enforcement and requirements for contractural agreements between spouses. Find a family lawyer in your state, preferably one familiar with your local system, and explore your options. I suspect they will be happy to consult with you by phone given the pandemic we are all finding our way through. I hope you and your husband find healing and growth soon.


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