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Can Infidelity Be Legally Justified?

Family Law

People can justify almost anything if they feel it’s for a good reason. Just look at our daily news feeds. But there’s a big difference between emotionally rationalizing behavior and proving that it’s legal. And judges are obligated to examine facts, not feelings when a case is presented in court. During a divorce someone may be able to find lots of emotional reasons why cheating on their spouse is understandable. But, it’s up to the judge to answer the question, “Can infidelity be legally justified?”

When do secrets get revealed?

There is a saying, “When alcohol goes in, secrets come out.” Where else are secrets revealed without alcohol being involved? When people get divorced in court.

During divorce proceedings (excluding those that utilize mediation to come to an agreement), we attorneys are obligated to probe the family’s secrets. We uncover what the spouses really earn or whether they have hidden away savings, properties or investments in foreign countries. We’re accustomed to researching these hidden facts.

Sometimes, during a divorce someone may disclose information in order to hurt the other person. The throes of anger or the heat of embarrassment can be dangerous. Once the secret is revealed, it could have devastating consequences to their case. (That’s why it’s so important to tell your lawyer the truth about everything.)

Suing for infidelity

This occurred in a lawsuit that reached the bench of Judge Nimrod Felix, of the Jerusalem Family Court.

A woman was suing her husband for divorce. She taunted him with news that their 5-year-old son was actually the son of a co-worker. And he was aware of his status as the child’s father. The wife claimed she was motivated to conceive the child with the coworker after learning that her husband was sterile. She argued that her actions should not be considered infidelity. She further claimed that the husband had been the deceptive one by concealing his sterility from her.

The husband, in turn, brought suit against her and asked for 650,000 NIS. He claimed compensation for the money he had spent to support the child. He expressed the severe mental anguish and emotional pain of disconnection from the child. The husband felt humiliation, shame and a huge blow to his personal self-esteem.

The judge’s decision

The judge declared that this was not actually a claim for infidelity but rather for paternity fraud. He said the wife failed to prove the husband was aware of his sterility. And, even if he had been aware there were other solutions they could have explored together, like bringing children into their lives without involving deception.

The judge set compensation at 275,000 NIS. This was for the husband’s humiliation, the blow to his dignity and to his personal self-esteem. It wasn’t higher because the husband couldn’t show evidence that he had supported the child. He also couldn’t disprove the mother’s claims that she in fact, was the one providing for the child. The judge added an additional 25,000 NIS to compensate for the father’s legal expenses.

It’s hard enough for kids emotionally when the family breaks apart. If acute financial strain is added because of a legal judgement, the welfare of the child could be at risk.

We have a law here in Israel that states, “The best interests of the child come first.” Working together, the lawyers and the judge could come up with a way to disperse the compensation over time or have it deferred until the child is grown.

“Can infidelity be legally justified”, isn’t really the question that should be asked. But rather, “What will be the effect on the kids if it comes to light?”

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