Read below as Devry Smith Frank LLP’s Toronto family lawyer, John Schuman answers a frequently asked question regarding spousal infidelity.
Q: What are the first steps to take when you find out your husband (or wife) is cheating? Can you change the locks and empty the bank accounts?
A: Finding out that your spouse has been unfaithful can be a very upsetting time. It can feel like a profound betrayal of trust. Even though you may feel very angry, you need to be very careful. If you act impulsively, you may do things that will really hurt your divorce case, possibly result in you losing custody of the children, or getting less money that you should.
There are some general first steps to take when you separate. They are covered on this webpage. However, there are some specific considerations when one spouse has been having an affair, which are detailed below.
First, if you are married, you cannot just change the locks on the house. Your house is a “matrimonial home” and that gives it special status. Section 19 of Ontario’s Family Law Act says that both married spouses have an equal right to stay in the house, no matter who owns it. They both have that right until they are divorced, or they agree in writing or a court orders otherwise. So, if you just change the locks and/or throw your cheating spouse’s possessions on the front lawn, you are breaking the law. That could result in a Family Court Judge kicking you out of the house (even if you own it) or believing you are mentally unstable and taking your kids away to “protect them.” Matrimonial Homes also create other unique problems. For more on that, read this webpage. However, one important consideration is that you may lose half of what you put into the house to your cheating spouse. So, rather than acting impulsively, it is better to plan out what you are going to do before your confront your spouse. That way may be able to create a situation where you can get more from him or her.
If you are not married, and you are just living together, where you meet the definition of “common-law” or not, your house is not a matrimonial home. It does not have any special status. If you and your spouse both own it, you cannot just kick your spouse out without a court order. If you are the sole owner, then you may be able to just change the locks, but you might get a visit from the police so your former partner can get his or her things. Acting impulsively may still hurt you in a child custody case because it may make you “look crazy.” Taking the high road can really pay off because Family Court Judges can be sympathetic to you as the “cheated-on” spouse and may want to help you more if you act responsibly and that can lead to court orders that are in your favour.
In a similar way, you can look really bad if you just go and empty the bank accounts. There is a lot more that can be gained if you do not reveal that you know about the affair right away. For example, you can get print-outs of everything that is in the accounts. You may also be able to get copies of some of your spouse’s bank statements or other financial records (make sure you put them back so you are not stealing), which will let you know what assets and debts your spouse has. That can be very useful when you meet with a family lawyer to decide on the best strategy for moving forward. It can also keep your spouse from hiding assets, or give you tips about where assets are hidden before your spouse knows to hide this information even from you. For more information about hidden assets, watch this video.
Obviously, if you look at the accounts and you find that your cheating spouse is taking money out of accounts and giving it to the “new partner” or someone else or hiding it away, you will want to get a court order to stop that. It is better to go to court and get an order freezing accounts and ordering your spouse to trace where money went than to just take the money out. When a spouse is stealing money from you, you can go to court without telling your spouse and get an order freezing accounts without them knowing. You can then give the order to bank and all of your spouse’s accounts may be frozen. That keeps your spouse from taking any more, it may cause him or her embarrassment when a debit or credit card does not work at a store or restaurant and it starts off the court proceedings with a judge believing your spouse maybe dishonest. You should speak to a family lawyer to make sure you do this motion right because you don’t want a judge to believe that you are the dishonest one. A family lawyer can also make sure you get the best order possible.
It is also important that if you have children, that you address the cheating with them in the right way. In many, or most, circumstances, that means not telling them about the affair at all. Your children may be as hurt as you about what happened. You do not want them to suffer. Also, judges view parents who try to damage their children’s relationship with the other parent as a bad parent – so much so that they may take the kids away. (See How Do Judges Decide Which Parent Gets Custody of a Child?.) You should talk with a parenting professional (a social worker or child psychologist) about the best way to talk to your kids about the separation, divorce and possibly the affair. Even though you may be angry, you don’t want to hurt your kids. Judges do not view an affair as a reason for one parent to bad-mouth the other to the kids.
Canada has a system of no-fault divorce. This means that one party having an affair does not entitle the other to more money or custody of the kids or any other special treatment. One of the ideas behind this is that the happening of an affair may be a symptom that the marriage was not working rather than the reason that it ended. In any event, the law does not give the judges any power to give you more money, or give you sole custody, or punish your spouse just because your spouse had an affair. Issues like how assets are divided are based on How is property divided after a marriage in Ontario?that is not affected by how the spouses behaved. So, going to court and asking for favourable treatment because your ex was unfaithful will not get you anywhere. Judges cannot address the strong emotions you feel after being betrayed by your spouse. That is not there job and the law does not let them do it. In fact, acting on those emotions, and trying to punish your cheating spouse may get you in trouble in court – especially if you do the things listed on this page. Judges expect that in court you will be rationale and do the right thing no matter how angry you are or how much it hurts. However, that does not mean that you cannot come out ahead of your cheating spouse; it only means you have to be smarter about how you do it.
There are a number of traps and pit-falls in Ontario Family Law. There are things that a spouse can do, or fall to do, that can really hurt their case, and which they may not even know about. The issue of losing a contribution to a matrimonial home is just one example. Another is a spouse essentially losing “custody” of the kids if she or he moves out leaving the kids behind. There are many more examples, many of which can be found in this $20, easy-to-understand book on Ontario Family Law. If you know your spouse is having an affair, but your spouse does not know you know, you have the opportunity to “set things up” so that when you separate, you come out far ahead. This is why it is a very good idea to contain your anger and speak to a good family lawyer, rather than confronting your spouse.
Containing your emotions when you learn your spouse has been unfaithful can be very difficult. The anger, sadness, and profound sense of betrayal that you may be feeling are all natural. As noted above, they have no place in your “legal divorce.” Those emotions can only get you in trouble and hurt your case. A good family lawyer will refer you to a counselor or divorce coach to help you move through your emotional divorce. That is where you have to deal with your feelings so that you can keep your mind sharp to allow you to make the decisions that will get you ahead in the legal divorce.
Another consideration is that an affair does not necessarily mean that your marriage has to be over. It may be possible to save it with counseling, open communication and a serious effort by both spouses to fix the damage that has been done. However, because an affair almost always means that one spouse has betrayed the trust of the other, the rules for the marriage have to change. Since there may no longer be the same certainty that each spouse is putting the other’s interests first, it is a good idea to get a marriage contract if the marriage is going to continue. Spouses can sign a marriage contract at anytime. They do not have to sign the marriage contract prior to the wedding. You do have to follow the rules set out in this podcast. The marriage contract can protect you from anything your spouse does in the future that may not be in your bed interest. You can keep your marriage, but also have assurances that if spouse betrays you again, you will be protected. More marriages then most people imagine are saved using marriage contracts to give spouses the reassurance they need that they are protected if their spouse cheats in the future.
So, when you learn that your spouse has been cheating on you, your first step should be to get yourself in to see a good family lawyer to plan your next steps to make sure you come out in the best possible way.
For more information on spousal infidelity or other areas of family law, please contact Toronto family lawyer, John Schuman at http://www.devrylaw.ca/toronto-lawyer-john-schuman.