From the perspective of a mediator, extra marital affairs often generate challenges that make it more difficult to help couples achieve fair and amicable settlements. I thought it would be interesting to discuss why that is and to look at some of the problems raised by affairs when negotiating marital settlements.
Of the many reasons that marriages end few create as much excitement as an affair. Popular media loves affairs of celebrities and politicians. The dramatic elements of illicit sex, secret liaisons and betrayal provide endless fascination for those without something more interesting to draw their attention. In truth, I think affairs get more attention then they justify.
In thirty years of mediation with more than four thousand couples, I have mediated in hundreds of cases in which the husband or wife has had an affair and in which the affair was the precipitating event of the divorce. But in all of those cases I have seen only one case in which an affair broke up an otherwise healthy and viable marriage. In many others the affair ends a struggling marriage that might have been saved by appropriate therapeutic repair or might have continued supported by nothing but endurance or inertia. In almost all the rest, the affair occurred after the marriage had already reached a much-weakened state.
Typically, a spouse has an affair out of loneliness or a sense of isolation in a marriage in which intimacy is nearly nonexistent and at least one if not both partners have long given up on the marriage. Sometimes people have affairs to reassure themselves that they are still attractive and desirable, but one generally finds that people look outside the marriage for that which the relationship fails to provide. That doesn’t mean that the wandering spouse is not occasionally a villain, but more often than not the affair is not the justification for the condemnation that so often occurs. I recall a woman who had had an extramarital affair. A year prior she had undergone a double mastectomy for breast cancer. On the day of the surgery her husband did not go to the hospital because he was busy trying out for as TV quiz show. Projected against that blatant indifference and insensitivity could anyone really condemn this woman for trying to assure herself that a man could find her attractive?
Even when affairs occur in a terminal marriage they present formidable obstacles to amicable resolution of the divorce. The other spouse invariably feels betrayed by the secrecy and duplicity of the affair. The resulting distrust may be generalized from the issue of fidelity to all issues. “If I can’t trust you about this, how can I trust you about anything?” This distrust combined with an impulse to seek retribution operates at variance with the essential premises of mediation.
Mediation emerged in the eighties, in large measure, as an adaptation to no- fault divorce. By the late seventies most states had adopted some form of no fault divorce because social standards had changed and many people wanted to be able to end a marriage simply because they were unhappy. This was in sharp contrast to traditional grounds for divorce that were based on an unpardonable violation of the marital covenants by one of the spouses. Traditional grounds included desertion, adultery and extreme cruelty, among others, but only allowed the victimized partner to seek the divorce. Because divorce was almost quasi-criminal in nature it was well-matched to the adversary system of law that had evolved over the years to determine wrongdoing—guilt in criminal cases and liability in civil cases.
But the adversary system was a poor fit for no-fault divorce in which divorce could be sought by either partner and the tasks of divorce consisted in dividing up the children, money and property rather than on fixing blame and punishing the culprit. . Mediation is focused on the future and on problem solving rather than on finding of fault and retribution for events in the past. So it is a challenge to a mediator when a couple comes to mediation and one of the partners is hell bent on punishing the other for infidelity.
When couples are mired in the emotional complexities of fault and blame, it is difficult to get them into a problem solving mode. Until they make that transition the mediation drags. Even when the affair occurs when the marriage is already near death, it frequently becomes the sole focus of the “aggrieved” spouse. In most divorces both partners have contributed to the decay of the relationship. It does not matter that the distribution of responsibility is not quite equal. In the end both partners own the divorce. If they both acknowledge responsibility for the divorce then both can be encouraged to share responsibility for the necessary dislocations and losses associated with divorce. That is the prerequisite condition for negotiating a fair divorce.
When the affair dominates the discussion and when the aggrieved spouse insists that the affair is the sole cause of the divorce, it seems logical for that spouse to insist that “since this is your entire fault, there is no reason for me to suffer and you should assume all the burdens of the divorce. You move out and pay me support. I should not have to reduce my standard of living or work harder to earn income. This divorce is your fault—you do the suffering.” With this premise a couple is in danger of a difficult, expensive and drawn out divorce. So the challenge is to prevent the affair from becoming the “legend” of the marriage. The mediator needs to work with the aggrieved partner to acknowledge that he/she was in an unsuccessful and usually unsatisfying marriage well before the affair ever occurred. The purpose is not to offer a justification for the affair but rather, to put the affair into a realistic perspective that permits the couple to move into practical problem solving and away from strong feelings of condemnation and guilt.
The mediator must provide the aggrieved spouse with an opportunity to express his/her feelings of betrayal and hurt. And it is useful to encourage the spouse who had the affair to apologize to the other. The apology is not an admission the failure of the marriage was caused by the affair but rather, an acknowledgement that the affair has deeply wounded the feelings of the other. But in the end, the aggrieved spouse must be helped to choose between acting on his/her hurt feelings or acting on his/her bests interests.
When the focus is on retribution, the couple is headed for a bad divorce. When the focus is on solving the practical problems of the divorce the couple has a good chance of achieving a good divorce. The skill of the mediator will often make the difference between the one or the other.
I am available any time to answer questions you have about North Carolina divorce law, custody issues, or separation and settlement agreements. You are under no obligation and remember: Divorce doesn’t have to be adversarial. You can achieve a good divorce.
Sam Margulies, Ph.D., J.D.