Marital infidelity is one of the most common grounds for marriage dissolution. In some cases when a spouse files for divorce citing irreconcilable differences, infidelity may be at the heart of the petition. While many people think about cheating in terms of one spouse committing adultery by engaging in a sexual relationship with someone they are not married to, divorce law practice has evolved to encompass different types of extramarital affairs.
Providing a Definition for Cheating
Many family law jurisdictions across the United States have adopted the concept of a no-fault divorce, which in part means that the court no longer has a strong interest in getting to the bottom of the marital discord. When neither spouse is expected to submit proof as to why the marriage is irretrievably broken, cheating tends to take a backseat to legal divorce proceedings.
Still, cheating is a transgression against the marital bond, and these days it may be classified as an emotional or physical affair. Both are acts of marital infidelity, but the mechanics and characteristics differ.
The Physical Affair
Whenever a spouse engages in some sort of romantic or intimate situation that involves physical contact with someone he or she is not legally married to, said spouse can be considered to be embroiled in a physical affair. To this effect, some level of touching and sexual proximity must take place.
Sexual intercourse is far from being the only act that constitutes a physical affair. Any extramarital contact that expresses romance, physical attraction or sexual desire can be part of a physical affair. For example, a married man who works at an office may become attracted to a coworker and initiate a physical affair that starts with holding hands, hugging and then kissing. By performing these actions, this man is being unfaithful.
The Emotional Affair
In the 21st century, marital infidelity has increasingly moved to cyberspace. Emotional affairs have been carried out for several millennia, and these days they are more likely to happen due to the proliferation of Internet-connected mobile devices such as smartphones and tablets.
Within the various covenants of marriage, the fulfillment of emotional needs is paramount. When a spouse decides to venture outside of his or her marriage to satisfy these needs, an emotional affair may ensue. Whereas physical affairs necessitate contact to be defined as such, emotional affairs require thoughts or feelings. In some cases, emotional intimacy can be communicated non-verbally, but such a situation may be difficult to prove from a legal point of view.
The modern emotional affair is likely to be conducted online. To a certain extent, mobile devices have become weapons of cheating. Would-be adulterers can now use mobile apps and social networks to engage in emotional affairs, and they can even lock their devices and encrypt their data for the purpose of hiding their extramarital activity.
Emotional and Physical Affairs in Family Law Practice
When it comes to reviewing marriage dissolution cases, law firms and family judges will not solely focus on emotional or physical affairs when issuing divorce decrees, dividing marital assets or issuing child support and visitation orders. Like in other civil cases, there is a need to look into the totality of the circumstances before coming to legal conclusions.
Although family courts are not particularly interested in telling couples that they should stay married, they will consider all facts and arguments. In some cases, a spouse may argue that there was an agreement or even a facilitation that led to the infidelity. In other words, a married couple who opts to live in a sexually open relationship would be hard-pressed to claim infidelity by means of a physical affair.
Someone who cheats because his or her spouse did it first may be found to be acting in recrimination, which could nullify an original complaint of infidelity. Connivance and recrimination are defenses that may be raised in a divorce case wherein emotional or physical affairs have been claimed, but this would turn into a situation of “at-fault” marriage dissolution, which is no longer a common family law practice.