Question #72: Several months ago, my wife asked me for a separation. This was quite a shock to me. I then became aware that my wife was involved in an affair with a married man. When I questioned her about this, she denied it vehemently and stated that she wanted a temporary separation with the hope of an eventual reconciliation. I then documented irrefutably with a licensed private investigator that my wife indeed was involved in an affair. I confronted her with the evidence and, long story short, after several months of marriage counseling, we are headed for a divorce. We have two young children who we have tentatively agreed to “share parent”. Our house will most likely have to be sold. I have suffered enormous emotional trauma as a direct result of the affair, and also enormous financial damage- private investigator bills, attorney fees, and all the expense that will now be involved in maintaining two homes. I am hoping for an amicable resolution to these issues, however, I have three questions: 1. Would “collaborative lawyers” be a good idea for me (my wife wants to go this way)? 2. As far as distribution of marital property, does this documented adultery entitle me to a larger percentage than would normally be the case (or at least reimbursement of such expenses as private investigators)? 3. How successful would a civil suit against the other man potentially be and has this been tried in the past?(I have definite evidence that he plotted with my wife to get me to leave my home before I knew of the affair but I don’t think it would be usable in a New York court). Thank you.

Unfortunately, not all expenses and not all emotional pain can be recompensed by a lawsuit. It is important that you and your spouse sit down and discuss amicably resolving the issues before you in separating and ultimately getting a divorce in a way that will cause the least amount of additional, emotional pain to you and your children, and allow you both to separate with dignity and get on with your lives.

I offer a unique alternative to the adversarial system in that although I am an attorney, I do not represent either side but rather I remain a neutral throughout the process and take you through all of the steps necessary for the separation and divorce, which includes child custody, child support, spousal support, the payment of any outstanding liabilities, and division of marital assets as well as any other issues that may have to be resolved in the marriage. Although the decisions about your children and your property will be made by both you and your spouse as opposed to having a judge imposed upon you and it will be done and the quiet of my office instead of the courtroom corridors. You’ll be paying for one attorney instead of two and not for the time in the courtroom waiting for your ten minutes before the judge.

I am not sure I understand what you mean by “collaborative attorneys” but if you mean each side will have his and her attorney meet together with you to try to resolve the issues, I believe the attorney’s involvement will only make the decision more combative and less likely to succeed in providing either of you with the best resolution of the issues.

I cannot overemphasize the benefits of mediating your divorce as opposed to litigating it, and I strongly suggest that if you live in the New York City metropolitan area you give me a call at 212-36370-1660 to arrange for all three of us to meet together to discuss mediation.

The grounds for the divorce (adultery) should have little or no effect on the distribution of the marital assets and your desire for a civil suit against the individual who had the affair with your wife, although it may provide you with some form of satisfaction, is not realistic and will be very costly and a waste of good money.

Leonard M. Weiner, Esq./Divorce Solutions