Voices: Kids, cheating and the Ashley Madison fallout

LOUISVILLE, Ky. — After a crazy storm on the opening night of a Louisville music festival last month, I found myself at a booth with a gentleman who was going through a divorce in a state that still allows a spouse to file on the basis of adultery or mental cruelty.

I was agog. As long as I have been a lawyer in Kentucky, no-fault divorce has been the law.

In Kentucky, one party must allege a marriage is broken with no chance for reconciliation as the requirement for filing for divorce. So while the Ashley Madison leaks are fascinating if you're a divorce lawyer or one caught in the trap of infidelity, in a no-fault state the relevance of discovering that your spouse is cheating might not get you more money or damages when a court divides property.

If your spouse spent money from the marital estate, which can include earnings, and your spouse was contemplating divorce when he or she spent the money to 1) cheat 2) while cheating or 3) trying to cheat, you may have a claim for dissipation of assets, a form of relief that is a vestige of fault-based divorce. I have been on both sides of those kinds of cases.

But my message is the same to clients, cheater or cheatee: Infidelity itself isn't a basis for relief.

A court could very easily rule that money a cheating spouse spends is marital property and order the cheating spouse to restore the other spouse to a portion of the money spent, purchase by purchase.

Leaks like the Ashley Madison hack are one way to discover a cheating spouse, but in my experience a cheater will reveal himself or herself much more organically:

• In one classic case, a spouse found a receipt for a lovely piece of expensive jewelry that her husband didn't give to her.

• Another spouse paid rent and utilities for the lover, uncovered during a review of online bank statements.

• Spouses often share passwords and get so caught up in an affair — or want to get caught so much because they don't have the courage to file for divorce — that the cheating spouse forgets to change a password to a social-media account or another account in the Cloud and BoomChickaWowWow, busted.

Fault isn't even an option to file for a divorce in at least 17 states, including Kentucky, but infidelity can cause collateral damage to the most precious parts of many divorce cases — the parties' children. In a tongue-in-cheek article written about the Ashley Madison leaks, a popular magazine advised kids not to input their dad's email account into an online database to check if he's cheating.

That's funny if you're older but heartbreaking for younger children, who may be incredibly embarrassed by the affair their friends know their dad is having but is too scared or cowardly to admit or address.

Your kids should not be penalized because you chose to stay married and cheat simultaneously.

Cheating and divorce may inevitably affect the children and may even uproot them but should not be a topic of discussion between either spouse and the children without a therapist's intervention and oversight.

No statute prohibits a parent from disparaging another parent or from spewing every character defect of the other parent at the children, including evidence of cheating. Yet, common sense, seemingly invisible in these situations, dictates restraint to avoid harm to kids that may reverberate throughout their lives and primary relationships, or lack thereof.

No matter how much money you throw at a relationship or how far you run from problems, broken trust is slow to heal. Whether website hacks or busybodies reveal a cheater, call someone to pick up the kids, talk it out with a therapist, schedule a consultation with a lawyer and do what you can to stay sane.

If you're lucky, you have marital assets to divide and a paper trail to prove a dissipation case.

Receipts from Ashley Madison? Petitioner's Exhibit One, your honor.

A. Holland Houston has practiced family law in Kentucky since 1997. She is a graduate of the University of Louisville Law School.