Monday, September 7, 2015

THE ASHLEY MADISON HACK AND NO-FAULT DIVORCE


A brunette with perfectly applied lipstick holds a single finger to her lips in a “shh” motion. Her beautifully manicured hands display a golden wedding band. Next to her are the words “Life is short. Have an affair.”

This controversial logo represents Ashley Madison, an online dating service and social networking site marketed to people who are married or in a committed relationship. It offers affair guidelines and even provides advice on how to cover one’s tracks when pursuing an adulterous affair. In mid-August of this year, the identities of the 37 million users registered on the database were released by hackers. This release included data from customers who had paid a $19 fee to Ashley Madison to allegedly have their data deleted. Now, there are multiple online search engines allowing you to check if your data or the data of someone you know was leaked in the release.

As more high-profile names surface among the millions of users of Ashley Madison, speculation continues about the divorce consequences for the adulterous users of the site. It is a popular opinion that divorce rates will undoubtedly increase as more cheaters are exposed; but if they do, how will the matter be handled by the courts?

Actually, the consequences would have been greater under historical family laws, which governed a “fault" regime. For instance, back then, a divorce was only permissible if a spouse could prove one of several fault grounds; adultery was one of them. But today, in Arizona and many other states, a spouse can petition for a divorce without the necessity of proving fault on the part of the other spouse: Arizona requires only that the spouse cite an irretrievable breakdown of the marriage.  Thus, Arizona is a "no-fault" divorce state.

In most divorces, property division and child custody are the primary concerns of the spouses. Under a "fault" regime, a cheating spouse may have had to pay in the property division or alimony award for an extramarital affair.  Today, however, Arizona and many other “no-fault” states do not consider who caused the breakdown of the marriage when dividing property; nor is "fault" a factor that the Court considers in determining spousal maintenance.  However, if the spouse implicated in the Ashley Madison leak misused marital finances (termed “community property” in the legal world), then economic fault can be a factor the Court considers in both the division of property and spousal maintenance. 

Regarding child custody (now called "legal decision-making and parenting time"), the court will rule based on what is in the best interests of the children. This is more of a “gray area,” or case-by-case situation, as it may be difficult to prove how the parent's sexual activities negatively impacted the best interest of the children.  If it can be shown that a parent's inappropriate behavior directly affected the children (such as taking them on dates, or exposing them to the paramour, etc.) then it is possible that the Court would consider the parent's conduct in making a "custody" award.


If the Ashley Madison hack had happened in a previous era of family law, the evidence obtained would have been much more useful in initiating divorces and awarding assets to the “victimized” spouse. However today, due to the dominant "no-fault" regime of the United States, even if a spouse wanted to initiate a divorce based on the data from the Ashley Madison hack, it is unclear whether it would have much of an effect; since, aside from embarrassment, the cheating spouse would almost assuredly suffer less financial and custodial consequences than in earlier times.

G.Frank & J.Chen


Gary J. Frank is a Family Law Attorney, a litigator, and a mediator with over thirty years of experience in dealing with divorcepaternity, custody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  In addition to representing Family Law clients in litigation, we are also willing to help people by working with them on a Limited-Scope or Consultation-Only basis.  Our office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  We can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach us through our website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, contact us today.  We’d be happy to help.