One of the most heartbreaking situations for any spouse is the discovery that their spouse has been carrying on an affair. Worse still is discovering that the spouse has been spending income or assets that would otherwise be used for family expenses or set aside as savings on the affair partner. And if finances have been tight, spending on the affair partner is even more salt in the wound. What can you do when you discover that your spouse’s affair partner has been using marital assets or that the spouse has been spending income or assets on the affair partner, such as through gifts, lavish vacations, or even the affair partner’s living expenses? Read on for strategies for dealing with this all-too-common, devastating issue.

If You Don’t File for Divorce, There is (Likely) Nothing You Can Do

If a spouse’s affair partner is spending marital income or assets, a threshold question is whether you wish to remain married. If you stay married, there is very little in your “toolkit” that you can use to recover the money unless the affair partner’s access was fraudulent, in which case you would need your spouse to attempt to recover the funds from the affair partner directly.

If you decide to forgive the infidelity and remain in the marriage, it could be said that you are acquiescing to the spending. Depending on how far in the past the affair occurred, if you later decide to file for divorce, it may be difficult to argue that you should receive a disproportionate share of the marital assets to compensate you for your spouse’s spending on their affair partner. Your spouse will argue that you knew about the spending but decided not to file for divorce, and your chance of stopping the spending or otherwise accounting for the spending in the division of marital assets may be impacted, as a judge may determine that the spending was too far in the past to be relevant.

Consider a Postnuptial Agreement

An alternative to filing a Complaint for Divorce is entering into a postnuptial agreement. Still, it may be difficult to fully address the dissipation by the spouse on their affair partner through a postnuptial agreement. You could consider quantifying the total expenditure on the affair partner (if your spouse is willing to give you that information voluntarily) and agreeing that, if you eventually end up getting divorced, you will receive that sum “off the top” before the rest of the marital assets are divided between you and your spouse. However, a postnuptial agreement is probably only effective in dealing with past expenditures on the affair partner. In other words, if the spouse does not end the affair, a postnuptial agreement will not be able to effectively deal with continuing expenditures by your spouse on an affair partner.

Another difficulty with the postnuptial agreement approach is that you have no rights to discovery without filing a Complaint for Divorce. This means you don’t have the right to request documents from your spouse (such as documents confirming how much they spent on the affair partner) or to subpoena records from third parties such as banks. You are then stuck with whatever documents your spouse is willing to provide you with voluntarily, and these may not be an accurate reflection of the total amount of assets or income your spouse spent on their affair partner.

Given the difficulties with using a postnuptial agreement to compensate you for assets that your spouse spent on their affair partner for these reasons, unfortunately, your first step is likely to file a Complaint for Divorce.

Discovery

Once you’ve filed a Complaint for Divorce, you have the right to conduct discovery. In Massachusetts, the first step in the discovery process is usually exchanging certain documents that all divorcing parties must exchange pursuant to Supplemental Probate and Family Court Rule 410 (“Rule 410”). These documents include three years’ worth of tax returns, three years’ worth of bank, retirement and investment account statements, each party’s four most recent paystubs, and a few other documents. The documents are required to be produced within 45 days from the date the Complaint for Divorce is served.

If you’re concerned that the spending may be ongoing, it may make sense to serve a formal request for production of documents on your spouse rather than waiting 45 days for their Rule 410 documents. A request for production of documents is a formal legal document requesting specific documents from the other party. Your spouse has 30 days within which to produce the documents. In addition to bank and credit card statements, consider requesting communications between your spouse and their affair partner, diaries and calendars, passports, travel information, airline tickets, and communications with hotels, airlines, and travel agents.

Alternatively, you may decide to send subpoenas to your spouse’s financial institutions, such as banks and credit card companies. The advantage of sending a subpoena is that you may be able to obtain the records more quickly than by asking your spouse for them through a formal discovery request. But the timeframe may depend on how backlogged the financial institution’s legal department is when they receive the subpoena, as it can take several months.

Once you receive the documents you need to determine how much your spouse has spent on their affair partner, your next step is to analyze the documents or, preferably, have your attorney look at them. Your attorney will be best equipped to cross-reference the documents and to spot issues and suspicious transactions in reviewing the documents. But you will likely need to assist your attorney since it may not be clear from looking at, for example, a credit card bill showing payment to a hotel, whether the expense was spent on a trip your spouse took with you or with your children or other family members, or for business, or whether the expense was for a trip with the affair partner.

Depositions

Documents alone will probably not provide a complete picture of the amount your spouse spent on their affair partner since it is hard to tell from a credit card statement whether a restaurant meal was your spouse treating a friend to dinner or going on a date with their affair partner. As a result, you will probably need to conduct depositions to get a fuller picture of the spending. At a deposition, your attorney will take sworn, out-of-court oral testimony of a witness, such as your spouse. Your lawyer will probably need to take the affair partner’s deposition as well to ask them what expenses your spouse paid on their behalf, what gifts they received from your spouse, what trips they took together, who paid, and a host of other questions. You may also need to request documents such as diaries from your spouse’s affair partner to corroborate the other evidence you’ve gathered regarding the trips they took together, gifts purchased, etc.

Accounting

Once you’ve received and reviewed documents and conducted depositions, you should be able to answer the ultimate question that matters for trial on the issue of the assets or income your spouse spent on their affair partner: how much was spent? During negotiations to resolve the divorce, or, if necessary, at a trial, you will be armed with the information needed to back up the total expenses and will be able to effectively argue that you should be compensated for the amount that your spouse dissipated on their affair partner. This means the amount should be added back into the total assets (so that the assets are being divided as if the expenses had never occurred), and then that amount should be divided equitably between you and your spouse.

But Shouldn’t My Spouse Be Punished for Cheating on Me?

Unfortunately, apart from compensating a spouse for dissipation on an affair partner, the Courts are not likely to “punish” your spouse for cheating on you. Although the fault-based grounds for divorce (including adultery, impotency, utter desertion, cruel and abusive treatment, intoxication, etc.) are still current law in Massachusetts, they require you to prove the facts of the specific ground, such as the affair. It is easier and more straightforward to obtain a “no-fault” divorce, in which you testify that the marriage is irretrievably broken down and there is no chance of reconciliation without the need to prove a fault-based ground. Even if you pursue a divorce on the grounds of adultery, the Court will not award you any additional compensation except to account for the dissipation on your spouses’ affair partner.

Conclusion

Affairs can be absolutely devastating in a marriage, and your first step is to consult with an experienced divorce attorney to discuss the best path forward and what steps can be taken to ensure that you are fairly compensated for assets or income that your spouse dissipated on their affair partner. This will include significant discovery in order to quantify the amount of dissipation.