Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. " The Rhode Island Divorce Coach ℠ "
Question: I had an affair before I filed for divorce. If the judge finds out about the divorce what might happen?
Answer: Divorce may be based upon irreconcilable differences or may be fault-based under Rhode Island Law. A divorce case may be filed based upon adultery. Thus, an affair may play a part in your divorce proceeding. However, the role the affair may play in your divorce will be directly related to the circumstances and the timing of the affair.
Consider these two diverse examples:
Example No. 1 - John & Tina
John and Tina have been married for 20 years and have two children. The second child turns 19 and goes off to college. Unbeknownst to Tina, John has been unhappy for hears and has considered divorcing her for years because they have had virtually no relationship. However, before John files for divorce he gets a promotion at his job and meets a woman who makes him feel alive again. He begins to see this woman for two months and then files for divorce and immediately moves out of the house.
In this instance, what role does the affair play? If Tina discovers that the infidelity began two months before John filed for divorce she might assume that this "other woman" and this "affair" are the cause of the marital breakdown and file a counterclaim for divorce alleging infidelity. If Tina insists on going forward with the counterclaim for divorce based on adultery, it is possible that her counterclaim will be denied if the family court judge hears John testify that he was unhappy for years and merely stayed together for the sake of their children and it was only by fate that he ran into a woman who made him feel alive again. If the judge believes John and believes that divorce was inevitable, then Tina should not prevail on her claim of adultery because Tina has not shown the affair was the actual cause of the breakdown of the marriage.
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