Episode VIII: Honey, I Promise We’re Just Friends

To recap our story, Charles and Donna found their young daughter, Brianna, with her boyfriend after curfew, and a yelling match ensued in front of the family home. When James, the boyfriend, called the police out of fear for an escalating situation, the officers who arrived on scene ended up taking James himself into custody for drugs they found in his vehicle. After the chaos subsided, Brianna ran away from the family home, incurring scratches on her face as she did so. In panic, not knowing where their daughter had gone, Donna and Charles called the police.

The police had already been out to the house once, and no one was in a very good mood when they returned. When they saw the abrasions on Brianna’s face, they immediately assumed that Charles had put them there, so they took him into custody. This incident was the final straw for Donna and Charles’ 15-year marriage, which was already on shaky ground. To escape from the growing tension in the house, Donna has been drinking moderately and also having an affair with a coworker, moves that enhanced the tension in the house even further.

As is so often the case, the incident with Brittany and James was sufficient to bring Charles and Donna’s house-of-cards marriage tumbling down. Furthermore, given the income disparity between the two, along with each party’s state of mind, an amicable settlement seems unlikely.

Adultery is now so common that many people, and that includes some jurors, do not consider it to be a serious matter. That may be true, but adultery still impacts the minds of most jurors, and if there are other adverse circumstances present, adultery could also have significant legal implications in both civil and criminal court.

Affairs and Criminal Law Credibility

Adulterous individuals violate their promises. Additionally, in most cases, adulterous individuals lie to their spouses to cover up their behavior. In our compelling saga, Donna probably told Charles she was “working late” many nights when she was not even in the office and that “her phone battery died” when it still had plenty of juice.

In criminal court, prosecutors usually try to bring up these character flaws, and other ones like them, in an attempt to discredit either the defendant or the witnesses that the defendant calls on his or her behalf. While arguably relevant to the issue of credibility, adultery in criminal cases is probably not relevant under Rule 401. To be admissible, evidence must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The standard (“any tendency”) is very low, so generally, if the adultery affects an issue other than credibility, such as alibi or motive, judges allow it. In all other cases, adultery is relatively easy to keep out of a criminal trial and a judge will probably even grant a motion in limine to exclude it.

Affairs and Divorce Credibility

Rule 401 also applies in civil cases, but in family law matters, adultery is usually much more relevant to a consequential fact. Arguably, adultery exhibits a disregard for the sanctity of family, an issue which is often at the heart of a custody case.

As mentioned earlier, to many jurors, adultery is not a significant issue, mostly because many jurors have probably committed adultery themselves. Nevertheless, if a spouse broke an important promise and repeatedly lied to cover up that breach, jurors may be less inclined to believe other promises and statements.

Affairs and Divorce Issues

Adultery may also affect substantive issues in the case. On top of the lies and broken promises, adulterous spouses usually spend significant amounts of time away from home, and they probably miss more than their share of PTA concerts and other children’s events. If such spouses suddenly express an interest in family, such a change is easy to characterize as disingenuous.

Fault in the breakup of a marriage is not a factor in property distribution matters, but dissipation (waste) of community assets can be a factor, and the dissipation rule is a backdoor for adultery. If a wife spent $10,000 in community property on gifts for her paramour, her husband may be entitled to either reimbursement or a disproportionate property share. Special rules apply in dissipation cases in terms of notice and other matters.

Count on Savvy Attorneys

Adultery may impact both criminal and family law matters. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Kristina Flour)

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