We have two very different sets of feelings about adultery (defined as a married person having a sexual relationship with another person outside of the marriage) in our culture. On the one hand, we feel that it is so commonplace as to not really be a big deal. One study concluded that fifty percent of married men have an affair at some time during their marriage. (The percentage is lower for women.)
But, on the other hand, if we ourselves are involved in an adulterous relationship, we experience shame, fear and an overpowering need to keep it hidden.
What about the situation where the adulterous spouse has been successful in keeping the affair secret, and the couple is now going through a divorce. Should the spouse who has been involved in the affair be candid with his or her divorce attorney?
There are two divergent schools of thought as to the answer to this question. You may think that if you have managed to keep the secret so far, why not continue? If your attorney knows, won’t he or she somehow communicate that to the other side or, in some circumstances, be required to let the judge in your case know? Your relationship with your children is really important to you, and you are concerned that if they find out about the affair, they will side with the other parent. And the thought of dealing with your spouse’s anger is daunting.
Other advisors would recommend that you be candid with your divorce attorney from the very beginning of the representation. This advice is based on a number of considerations. First, your attorney can only give you sound legal advice if he or she has a mastery of all of the relevant facts in your case. What is the impact of adultery if you are a spouse seeking alimony? Will your adultery impact a judge’s assessment of your fitness as a parent? These and other areas can be explored and a strategy developed only if your attorney knows about your affair.
When considering whether to reveal your affair to your attorney, there are also psychological ramifications that need to be explored. For example, if your spouse and children are going to experience feelings of betrayal when they learn of your affair (which they most likely will, sooner or later), wouldn’t it be better both for you and for them if you get in front of the issue and candidly acknowledge it? If you adopt this strategy, you avoid compounding the hurt your family will experience. And this strategy can allow healing in your important family relationships to begin.
On balance, the case for early and complete candor with your divorce attorney about any adulterous behavior as well as any other negative information relevant to your case is a compelling one.