Home DIVORCE ADVICE: Q&A Should adultery be a basis for divorce?

Should adultery be a basis for divorce?

Should adultery be a basis for a divorce in any state?

Or should courts adopt the policy that people are polygamous by nature and take adultery off the table and only allow divorce on the basis of “irreconcilable differences”? I’m just asking because it seems that more and more, adultery is a factor in many (most?) marriages. I have often said that the adultery comes with the marriage sort of the way the herniated disc comes with the car in the personal injury case…if that is the test, it is almost as if everybody should pretty much petition the court for divorce. 

In this post, http://www.divorcesaloon.com/anatomy-of-a-gay-divorce which I wrote last night, I argued that maybe marriage should just be out-lawed. Maybe that would be a bit extreme, but that’s how I was feeling last night. I got to the point where I thought, “wait a minute…is this model working for folks?” And the answer often times is “No. It is not.” IN fact, in my experience, marriage becomes a trap for a lot of people who do desperate things to get out; or it is treated in a lite, blase manner where a man and woman get married for a green card, or they fly to Vegas, marry, then divorce the next day; or the couple has all these problems and somebody ends up cheating on the other person, or all sorts of crazy stuff.

And then I started to wonder, specifically with respect to the cheating, can it be helped? Are humans wired to be faithful to one person their whole lives? Is it cheating that is the problem? Or is it marriage? I mean, if people are going to insist on going ahead with the model called “marriage” can they realistically continue to fault the other person for acts of adultery–if it is human nature to be polygamous in the first place? I mean, I don’t know. I am playing devil’s advocate.

I don’t think adultery is even on the table in certain states like Nevada. And in most states, well, in all states, except New York, you don’t even have to allege a ground for the divorce you can get a divorce on the basis of “irreconcilable differences.” So it doesn’t matter what the reason is that you want a divorce. It certainly doesn’t matter as far as who gets what.

But should it? I was just reading here http://www.eastvalleytribune.com/story/135778 that certain legislation is now being considered that would give strong weight to “cheating” as a basis for who gets what in a divorce action. It is an Arizona case. Here is a quote from the article:

State lawmakers may force divorce judges to start hearing words they haven’t heard in more than three decades: He cheated.

Legislation being pushed by Sen. Linda Gray, R-Glendale, would allow either party in a divorce case to introduce evidence of “misconduct” by the other spouse.

The change in SB1206 would not affect whether a judge would grant a divorce. The sole grounds for a court making that decision would remain that the union is “irretrievably broken.”But it would remove a mandate that now requires judges to consider issues of child support, dividing up community property and alimony – called spousal maintenance in Arizona – “without regard to marital misconduct.” What it would do is allow parties to introduce evidence that now is legally considered irrelevant.

In Arizona, it seems that the basis for divorce is usually the good old “irreconcilable differences.” And the article is basically saying it should remain that way. So the adultery is not actually a basis for divorce. It would be a basis to decide how property is allocated in the property settlement segment of a divorce case. So, in effect, it is still making the adultery relevant. And my question is, should it be? Whether it is as a basis for divorce or it is to determine the property settlement, should adultery be a factor in divorce cases?

 

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