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Divorce Causes - Part 3 of 5

Infidelity - The Marriage Killer

People often ask what is the leading cause of divorce? Opinions vary. Depending upon which study you read you will see different causes identified - lack of commitment, lack of intimacy, money problems, domestic abuse, etc.. However, infidelity is always near the top of every list.

Before embarking on this discussion, it is important for me to note that the statistics used and generalizations made herein are simply that - beliefs, statistics and generalizations formed during my 40 year practice as a divorce lawyer and the research I have conducted.

In this five part series of blogs I have posited the notion that rather than thinking of divorce from the perspective of absolute causes which individually will cause the demise of the marriage, it is more appropriate to think of this construct as a collection of divorce correlations. In other words it is rare that a single divorce cause inevitably and inextricably leads to divorce. Rather it is the result of a collective of multiple risk factors, many of which I discuss in this series of blogs.

Indeed, some people have posited the notion that infidelity is not a cause of divorce but rather the consequence of an already crumbling marriage. Nevertheless, based upon my many years as a divorce attorney I would have to say that infidelity is often identified by the majority of my clients and prospective clients as the circumstance which has brought them to my office. Moreover, unlike other divorce causes which often work in combination, it alone, can be the death knell of the marriage. So let‘s take a closer look at infidelity by asking the questions "what", "who", "with whom", “when" and "why."


First, we need a working definition. What is infidelity? Infidelity is the act of cheating on a spouse or a committed relationship partner. It can be either emotional infidelity or sexual infidelity, otherwise known as adultery. In most instances it is the latter and the one which I will focus on here. Once again, I have had many prospective clients sitting in my office talking about their spouse's "adultery" (and other words not suitable for this blog) but almost none of these people have told me that their spouses were having an "emotional affair" with someone else.


So how prevalent is sexual infidelity in America? Surprisingly, 90% of all people surveyed believe that committing an adulterous act is morally wrong and 61% believe that it should be treated as a criminal act as discussed below. Notwithstanding these beliefs, the most recent surveys indicate that 22-25% of married men and 14-17% of married woman have had at least one adulterous affair during the marriage. Among divorced ex-spouses, 44% of men and 40 % women indicate that they have had multiple extramarital affairs during the marriage. In other words, philanders are often serial offenders, which belies their promise that it will never happen again.

If anything, the above cited statistics on cheating are on the low end of the scale. By its very nature, spouses go to great lengths to hide their affairs. 70% of married women and 54% of married men did not know of their spouses’ extramarital activity. In many cases, infidelity never gets discovered. However, despite the generalization that "the wife is always the last to know", in point of fact nearly 85% of the women are right when they think their partner is cheating on them while for men it is around 50%.



Infidelity appears to be a "crime of opportunity". Most of us are familiar with the scenarios where Rock Stars and Professional Athletes are beset by individuals who are pressing notes into their hands with telephone numbers or provocative messages or throwing their room keys at them during a performance. We are also aware that such glitterati have boasted of their many sexual conquests. For example, in his 1991 book "A View From Above", Wilt Chamberlain, the professional athlete, nicknamed the Big Dipper presumably for his basketball prowess, claimed he'd slept with 20,000 women over the course of his career. Charlie Sheen, the actor, claims to have had sex with at least 5000 women - half the 10,000 men claimed by Gwyneth Montenegro. In all fairness I don't think that Montenegro should count since she did that for a living rather than as a consequence of her living.

However, the vast majority of men and woman who stray are not famous icons or sex workers. Nevertheless, even for the regular Joe and Jane, infidelity is still a "crime of opportunity." The percentage of men and women who admit to having an affair with a co-worker is 36%, the same 36% of people who also admit to infidelity on business trips. Keeping it all in the family, the percentage of men and women who admit to infidelity with a brother-in-law or sister-in-law is 17%.


Infidelity can take place anytime during the marriage or the committed relationship. Sometimes the cheating occurs under circumstances which seem particularly cruel, egregious or ill-timed, such as those instances where the husband cheated with one of the bridesmaids on the night of the wedding or the fiance who cheated on his betrothed right around the time that she was nursing their hours old newborn in the hospital. However, there are certain predictable times when the chances of infidelity seem to be greater.

For example, the time period right after the first year of marriage. Around this time the glow and excitement of the marriage (sometimes referred to as the "honeymoon phase") begins to fade and it is not uncommon that spouses also begin looking for adventure or excitement outside of the marital relationship. Similarly dangerous is the time right after the birth of the first child, when priorities change from the couple alone to a new construct involving a child. Due to the need to give your attention to someone other than your husband or wife, the emotional feelings between the two change a great deal. So, illicit affairs often begin after the birth of first child.

When else? Many of us are also familiar with notion made famous by the movie "The Seven Year Itch", starring Marilyn Monroe and Tom Ewell. The movie was based upon the popular belief, sometimes cited as having psychological backing, that happiness in a marriage or long-term romantic relationship declines around the seven year mark. These same professionals have recently revised their estimates and have now concluded that the unhappy period generally occurs 5 years into the marriage or relationship instead of 7 years. Researchers have also found that affairs occurring in this unhappy period will continue for the longest period of time as well.

Another popularly held belief is that affairs frequently start up when someone is experiencing a "mid-life crisis". Once again this concept finds support from the psychological community Generally, a midlife crisis occurs when people are between the ages of 45 and 65, often stimulated by a person's growing age, inevitable mortality, and a perceived lack of accomplishments in life. Stereo-typically, in men the mid-life crisis often finds expression in a brand new Corvette convertible, a Rolex watch and a voluptuous young girlfriend. Again stereo-typically, women experiencing a mid-life crisis are more inclined to turn to that really skilled artist known as a plastic surgeon, trips to exotic locations and an affair with that segment of the male population know as "boy toys."


Now we come to the $64,000 question. Why do people cheat? There are so many reasons why people cheat on their spouse or life partner that it almost defies categorization. Lack of intimacy in the relationship, opportunity, lack of sex, variety, danger, revenge or a desire to blow up the relationship have all be cited as culprits.

Recently, a highly successful book was launched which dove headfirst into this controversy entitled "Cheatingland: The Secret Confessions of Men Who Stray." The author, an anonymous journalist, spent four years interviewing men for his investigation. What he found was that "Cheatingland" was like a clandestine oasis - sort of like the "Fantasy Island" show of TV fame - a place which has its own customs and mores, where wedding vows are forgotten in favor of mind numbing sex.

So what did the men who were interviewed have to say? One said he cheated because his mistress offered something that his wife did not - a perfumed partner with sexy undergarments who was entirely attentive to his needs. Another said he cheated for the pure thrill of it, since he and his married mistress were close friends with the spouses of each other. Explaining the danger of this dynamic, the man glibly observed that if his girlfriend's husband found out about their affair, “he would kill me and then my wife would revive me so that she could kill me.” This palpable danger made the affair even more enticing.

Finally, one man explained that cheating was like having a "Frankenstein girlfriend" or in his case multiple girlfriends. One was better in bed, one was prettier, one was smarter and more fun to talk to. If one of them didn't do something he liked the others would. As for me, I am waiting for the sequel to this tome where women discuss their time in "Cheatingland."


As you can probably imagine, often, the direct consequence of infidelity is a divorce. Not in all cases but in many. Moreover, that hurt or wound runs so deep, that in most instances, it is unforgivable and unforgettable by the party who was cheated on.

Ironically, most judges across the United States take the view, consistent with our no-fault divorce statutes, that infidelity has no bearing on the economic outcome of the divorce (the division of assets or the payment of spousal support) or the issue of child custody and visitation. While infidelity may not matter to a judge try explaining that to the divorce client who is deeply and bitterly hurt by their spouse's cheating. From my personal experience as a divorce attorney I can tell you that it is going to take some time, often a long time, for the hurt spouse to separate their anger and resentment from the pure economics of the case, as well as the issue of custody - i.e. this is not going to be a simple, quick, negotiated settlement without rancor.

Finally, it bears mention that not only is adultery morally wrong, as indicated by 91% of the surveyed population, but also it is a crime in 21 of the states of this nation. While most of these states categorize it as a misdemeanor, a few states, including Idaho, Michigan, Oklahoma and Wisconsin, treat it as a felony. As a practical matter very few District Attorney's offices prosecute adultery cases but it has happened and could happen again. Thus, divorce attorneys have to be wary of having their clients admit to adultery not only for strategic reasons but also for avoiding criminal liability.

Moreover, the adultery could lead to loss of employment. Take for example CNN chief Jeff Zucker who "resigned" from the network based upon his long-standing affair with a network colleague. Additionally, the Military has the right to dishonorably discharge servicemen and women for such an offense. In the past eight years, 30% of the military commanders who were fired lost their jobs due to sexual misconduct, including adultery.

In the final analysis, infidelity is a multi-headed monster which shatters lives and visits enormous consequences on spouses, committed partners and their children. Caveat Emptor! Be very careful. Think long and hard before travelling to Cheatingland.

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