Divorcing a cheater? Get more money

By divorce360.com

Of those who found themselves wincing at Silda Spitzer as she stood by her cheating husband, then-New York Gov. Eliot Spitzer, were many people who've felt the sting of adultery. A University of Chicago study found that 25% of all marriages are affected by adultery. If a spouse divorces a cheater, can she or he get more of the marital assets? Maybe.

While all's fair in love and war, that's not necessarily so in divorce court.

"In California, adultery doesn't make a bit of difference in division of property. . . . Judges don't get into it. Often, people are very disappointed to hear that," said Nordin Blacker, the president of the Northern California Chapter of the American Academy of Matrimonial Lawyers. However, not all is lost.

"You can put yourself in a better position and bargain for more-favorable terms if you know how to go about it," said Ruth Houston, the author of "Is He Cheating on You? 829 Telltale Signs."

Here are seven steps for negotiating a better settlement:

Do your homework

"Don't wait until the cheater cleans out the bank account and leaves, or you'll lose your chance to gain the upper hand," Houston said. "If you suspect that something might be going on, be smart and quietly go about getting some of the details."

According to a 2008 survey of the matrimonial lawyers academy, 88% of the nation's top divorce attorneys said they had seen an increase in cases using electronic data as evidence in the previous five years.

"Technology is having a big impact on the way that divorces are now conducted," said James Hennenhoefer, the president of the academy. "Many people still don't realize how much evidence can be gleaned from personal electronics, ranging from computers to cell phones and GPS. In the Internet age, there is often a very clear trail."

Once you have evidence, confront your spouse.

"Letting your spouse know you're aware of their affair may make the difference between being dumped and negotiating for more-favorable terms," Houston said.

For a spouse facing the loss of a marriage, working a deal whereby infidelity is kept quiet in exchange for a larger settlement may make sense for both parties. For example, the U.S. military considers adultery unacceptable conduct. If a soldier commits adultery, he or she can be charged with Article 134 of the Uniform Code of Military Justice, and the adultery could reflect adversely on his or her service record.

"If you do decide to pursue this avenue, you will have to keep quiet as you are learning about the affair. Otherwise, you will lose your bargaining power," Houston said.

Also, proving adultery isn't easy. "Even if you have a video of your husband and his secretary going into a hotel room, that doesn't mean you've proven anything," said Thomas Wolfrum, a certified family law specialist who is a fellow of the matrimonial lawyers academy.

Explore your fault/no-fault options

There are fault grounds, such as adultery, physical cruelty, mental cruelty, habitual drunkenness and desertion, and there are no-fault grounds, such as "irreconcilable differences" or living separately for a time.

Oklahoma introduced no-fault divorce in 1953. But the idea that you could get a divorce without blaming someone didn't gain traction until 1969, when California abolished its old divorce law and replaced it with dissolution based on irreconcilable differences. By 1985, every state had adopted no-fault divorce.

Some no-fault states do allow you to claim fault, penalizing the at-fault party, when you're deciding who will pay attorney fees or who will get what property. Some no-fault states also consider fault in spousal support.

Learn about division of property

Even if you don't live in an at-fault state, you still may be able to get more of the marital estate, depending on whether you live in a community-property state or an equitable-distribution state. In community-property states -- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin -- fault is not considered in division of property.

Continued: Equitable-distribution states

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