Suddenly you find yourself where you hoped you'd never be .... thinking about divorce. Karen was in just such a position. Her husband Terrance had been distant from her for nearly a year. No physical contact. No words of endearment. More late nights at the office and frequent business trips that were never mentioned by Terrance.
Finally Terrance divulged that there was "another woman" and he was moving out. Karen's heart was broken. Soon that pain turned to anger as she entered the attorney's office searching for her divorce rights and options.
Karen had her husband's admission that there was "another woman" and nothing more, though she suspected it most likely included intercourse.
So the Rhode Island attorney explained that Rhode Island has both fault and no-fault grounds for divorce. Karen's first response was to file the divorce immediately on the grounds of adultery. Karen wanted Terrance to be "found out", "blamed" and penalized in open-court for his wrongful conduct toward her.
The Rhode island Attorney asked her if she knew the difference between filing for divorce based upon "irreconcilable differences" and "adultery." This important discussion took place:
KAREN: When it's "irreconcilable differences" I don't get to tell my story of what happened and nobody is at fault so I suspect the court splits everything 50/50." When its "adultery" then the court and the people get to find out that he's a cheating rat and how he did this right under my nose and ruined our marriage so because of that he gets punished for what he did and I am going to get awarded more than 1/2 of what we own.
LAWYER: That's interesting Karen. Many people think that way but I need to clar you up on a few things. Your idea of "irreconcilable differences" is close but it doesn't mean that you don't get to tell you story. If you decide to go to court you can still tell you story and the judge can consider what happened in dividing the assets. However, if it's "irreconcilable differences" then all you have to do is prove one difference with your husband that you can't reconcile and it has caused the breakdown of your marriage. That is really easy to prove.
Now, if you use "adultery" as your grounds for divorce you must prove (not just suspect) that your husband had intercourse with a woman and you must be able to prove who the woman is, when and where it took place, and most important, that it was THAT ADULTERY that caused your marriage to break down and not something else.
KAREN: Well I don't know all that! Why do I have to prove all that?
LAWYER: Well, you're claiming you should get a divorce based upon "adultery" so that is what you have to prove for "adultery" just to be granted your divorce!
KAREN: Well I want to be able to tell my story and I want more than 1/2 of the assets. That's the only way I can get it, right?
LAWYER: No. You can file based upon irreconcilable differences and you still get to tell your story at trial and the judge can take into account your husband's conduct in dividing up the assets and debts.
KAREN: And that makes it easier for me?
LAWYER: Yes, it does. It makes it easier for you to get your divorce and you still get to tell your story to the judge.
KAREN: But I want "adultery" because I want him punished so I get more than 1/2 of our assets. I want to make sure he doesn't do this to any other woman again and I don't want him to forget it.
LAWYER: Karen, "adultery" is just a grounds you have to prove to "get" your divorce. It is not meant to punish either party... even the one who committed adultery.
KAREN: That doesn't make any sense. Isn't there any justice! He did something wrong so he should be punished. Why else would they have that in the law?
LAWYER: Confusing, isn't it Karen? But I can explain that to you. You see if he slept with another woman then yes, in our eyes maybe he did something morally wrong! However, the law doesn't always address what is morally wrong, that's why people go to confession at church. But that doesn't mean that the judge doesn't consider anything at all! Now, if Terrance has been sleeping around on you for 5 years and paying his girlfriend's rent, then he's been spending family money on someone who is not part of the family... and some of that money is yours! So if he does that, the judge is most likely going to expect that he pay you back... perhaps by getting more of the assets. If Terrance bought this woman a set of diamond earrings for $10,000, then technically he spent $5,000 of your money on another woman so he may be held by the responsible by the court for returning those monies to you because he damaged the "marital estate." So he may get punished for not necessarily for his adultery but for wasting or taking money that belonged to you both and using it on this woman. So he took away monies meant for you and the judge may require him to give them back by giving you more of the remaining assets.
Here's the catch. You don't have to use the grounds of "adultery" for those things to happen. The judge can consider the conduct of the parties during the marriage, including what they spent and what they did, in a case of a divorce brought based on irreconcilable differences.
So here's my question, Karen. If irreconciable differences allows you to get your divorce more easily,to tell your story, and to prove anymonies he wasted on this woman so you get more of the assets, but adultery makes it harder to get your divorce, and it won't punish Terrance or automatically give you more of the assets, then wouldn't you want to file based upon "irreconcilable differences" to make it easier on yourself?
KAREN: Now that I know that's how it works, then absolutely!
LAWYER: Okay, so we've handled the infidelity as the grounds for the divorce. Let's move on to the other important aspects of your divorce to help you understand them.
(Note: This is not any particular discussion with any particular client but resembles countless discussions I have had with numerous male and female clients and is based upon Rhode Island law and practice.)
This discussion outlines the current state of Rhode Island law from an experienced divorce lawyer's perspective regarding the grounds for filing using "irreconcilable differences" (i.e. no-fault grounds) versus filing under "adultery" due to a spouse's supposed infidelity which has it's drawbacks and is usually a more emotional decision rather than a practical legal one. An experienced Rhode Island divorce lawyer can explain this in more detail and put it in context based upon the factual circumstances of your own case.