Nowadays, seldom is the issue whether parties should get divorced. The issues are under what terms, how their assets and liabilities should be divided, how their children should be parented, and whether anyone should be paying support to the other and how much.
Few cases now are brought for marital fault and proving “fault” seldom results in much of a difference, though it can result in some difference, in a property division in an “equal” division under NH RSA 458:16-a and an “equitable” division under MA c. 208, sec. 34.
However, there is another “adultery” which often is important in my obtaining a fair division of assets for my clients, “financial adultery.”
The statistics of how many spouses are committing sexual adultery are disputed, with studies concluding from 25% to 50%.
However, statistics conclude that 31% of spouses are committing financial adultery, defined as lying to their spouses about money, according to a recent study commissioned by ForbesWoman and the National Endowment for Financial Education.
In my experience representing victims who have suffered both marital wrongs, financial misconduct can be more destruction than physical misconduct, and have much longer effects.
Some signals that your partner may be cheating financially:
Sometimes, if the amounts of missing funds involved warrant it, I will recommend that my clients hire a forensic accountant to prove the misconduct. Other times, “targeted discovery requests” will prove sufficient. But, the discovery must be, targeted or my client will waste her or his money.
Discovery is propounding interrogatories, demanding documents, taking depositions, and other such things. As a trial attorney, I see daily that, despite strict court rules forbidding such behavior, discovery abuse is still a problem. It drives up litigation costs, delays resolution of disputes, and hinders justice.
Discovery abuse takes many forms, from “hiding the ball” to demanding information compilation and production of information which is of little relevance, but time consuming and annoying. It’s still fashionable in divorce litigation to demand the other side produce credit cards records going back years, when it is clear the debt will be shared equally. Also, to demand that the other side produce copies of checks going back years, as if the case hinged on the cost of a meal out.
Now, of course, they are cases where such obscure records do matter.
I think part of the problem is we lawyers practicing “protective lawyering.” We’re concerned that if we don’t demand the production of every single document and something goes wrong, we’ll be later blamed for not demanding every single document. I think we lawyers have to act with more common sense.
Sometime a party is entitled to alimony, which is different from child support. There are various types of alimony, depending on the needs of the recipient and the ability of the paying spouse, such as long term alimony, short term alimony, and rehabilitative alimony.
Most agreements providing alimony include language that the alimony ceases if the recipient is a relationship with the indicia of marriage. However, better reasoning is that the award or termination of alimony should not be based on morality, but economics. Even if someone moves in with someone, the economics, not the sleeping arrangement, should be what’s examined. Does the recipient of the alimony still need support?