What cheating means for your divorce — “Split Happens” Podcast, Ep4, with Jay Henderlite

The subject of cheating is painful, common, and emotionally charged. In this episode of Split Happens, Katie Garner asks the questions many people want answered about infidelity and divorce while Jay Henderlite, a board-certified family law attorney at Sasso Guerrero & Henderlite, provides clear, practical answers.

The goal is to separate emotional reaction from legal reality and to explain what cheating actually means in the courtroom, what it can and cannot change, and how someone facing this situation can protect themselves emotionally and legally.

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Interview

Katie Garner: Many people are devastated when they discover cheating. From a legal perspective, what is the first difference between being hurt and having a legal remedy?

Jay Henderlite: The emotional reaction to cheating is natural and understandable. People arrive seeking retribution or a way to be “made whole” by the legal system. Legally, however, the court’s role is limited. In Florida, as in many states, the standard ground for divorce is that the marriage is irretrievably broken. That ground can be satisfied by either party wanting to end the marriage and does not require a showing of misconduct such as cheating.

The courtroom is primarily concerned with division of assets, support, and custody, not assigning moral blame. Cheating may explain why the marriage failed, but it often does not change the baseline legal outcomes that govern assets and parenting.

Katie: How does cheating affect property division? For example, if a spouse cheated while on a work trip and there are children involved, can the unfaithful spouse be punished financially?

Jay: Cheating by itself rarely produces a financial penalty or a disproportionate split of marital assets. Property division in Florida is governed by equitable distribution, which aims to divide marital assets fairly but not necessarily equally. Most assets acquired during the marriage with marital income are marital property and subject to division.

The fact that a spouse cheated does not automatically entitle the other spouse to more property or more alimony. We need to distinguish between emotional harm and financial harm.

If cheating led to financial misconduct, such as spending significant marital funds on the affair partner, that financial conduct can be relevant to property division. But the mere fact of cheating, absent financial impact, typically will not alter the way assets are divided.

Katie: What about all of the evidence people want to gather—texts, videos, phone records, bank statements; are those necessary?

Jay: The necessity of evidence depends on the legal objective. If the goal is simply to prove that cheating occurred but that proof has no legal benefit, gathering every digital trace may only prolong suffering. Rehashing messages and footage can trap a person in a cycle of rumination. 

By contrast, if there is reason to believe marital funds were spent on the affair partner or other financial misconduct occurred, then bank statements, credit card records, transfers, and receipt trails become crucial. In those cases, forensic accounting or targeted discovery is appropriate and worthwhile. 

Otherwise, I’d advise someone to focus on the end game: what will move the person forward legally and financially.

Katie Garner: Does cheating affect child custody or parenting plans?

Jay: Child custody decisions are driven by the child’s best interests. Courts evaluate parenting ability, stability, and factors that affect the child’s well-being. Cheating alone does not prove a parent is unfit. The law recognizes that being a poor spouse does not automatically make someone a poor parent. 

Exceptions occur when the affair involves people who pose a risk to the child, when there is criminality, or when the extramarital relationship involves someone in the child’s close circle in a way that would harm the child emotionally or physically. Otherwise, custody choices hinge on parenting time, co-parenting capacity, and the child’s needs, not moral judgments about fidelity.

Katie Garner: Are there any statutory provisions where cheating still appears or matters in Florida law?

Jay: While fault-based grounds like adultery remain on the books in some statutes, they are rarely the practical basis for more favorable outcomes. Florida courts will consider relevant financial misconduct if it affects equitable distribution or alimony. The existence of statutes mentioning adultery does not translate into widespread financial windfalls for the betrayed spouse. 

Many clients expect courts to “punish” infidelity – but the legal system is not structured to settle personal scores. Judges enforce contracts and divide property. They ensure support arrangements are fair. Cheating is often a reason for divorce but not a lever for disproportionate legal advantage in most cases.

Katie Garner: Suppose a cheating spouse bought expensive gifts for the affair partner with joint funds or otherwise depleted marital assets. How should the betrayed spouse approach that?

Jay: This is one of the scenarios where evidence matters a great deal. If a spouse diverted marital funds to support an affair, the betrayed spouse may seek reimbursement or a credit against the other spouse’s share in equitable distribution. 

The strategy is to document the spending, identify the assets in question, and, when necessary, trace transfers and expenditures. In extreme situations—such as an expensive vehicle or real estate purchased for the affair partner—those transactions could be reversed, offset, or otherwise addressed by the court. Targeted financial discovery, subpoenas, and accounting can be used to protect the betrayed spouse’s financial rights.

Katie Garner: If someone is emotionally driven to expose the cheating publicly, does that change the legal approach? Can the court proceedings be kept low profile?

Jay: I would always advise caution. While high-profile affairs and public shaming might feel satisfying momentarily, they often cause long-term harm. Court filings can become public records, and sensational details can follow a person forever, affecting future relationships, careers, and emotional recovery. 

I recommend aiming for a process that is as private as possible. Litigation strategies can include sealing sensitive documents when justified and pursuing negotiated resolutions rather than public trials. However, some circumstances—such as the “kiss cam” incident with corporate or media exposure—are difficult to hide. Remember, the ultimate goal should be to protect your future, not to make a permanent public spectacle out of a temporary emotional crisis.

Katie Garner: What do you tell clients who want to gather every last piece of evidence to prove the affair, even if it does not affect legal outcomes?

Jay: I counsel restraint. Endlessly hunting for evidence about what happened, when, and with whom often perpetuates pain and impedes healing. Unless that evidence is necessary for financial claims or child safety concerns, the pursuit may do more harm than good. 

Instead, focus on actionable steps that protect legal rights—securing financial documents, consulting counsel, and establishing a plan—and to simultaneously seek emotional support. An attorney can shoulder the legal responsibility so the client can concentrate on healing, rebuilding, and making forward-looking decisions.

Katie Garner: How can an attorney help someone process both the legal logistics and the emotional fallout of cheating?

Jay: Attorneys play two key roles. First, they provide clarity about what the legal process can and cannot do. By setting realistic expectations, attorneys prevent clients from using litigation as a vehicle for emotional revenge. 

Second, attorneys coordinate practical steps: preserving assets, analyzing marital versus non-marital property, pursuing accounts and records where appropriate, and crafting custody proposals centered on the child’s best interests. 

Attorneys also guide clients to mental health professionals for emotional processing, since the courts are not designed to address emotional healing. In this way, legal counsel and therapy work together to support a client through a transition.

Katie Garner: What are the realistic outcomes someone should expect after discovering cheating and deciding to divorce?

Jay: Legally, most divorces with cheating will look like other divorces: an equitable division of marital property, possible spousal support depending on circumstances, and parenting plans centered on the children’s needs. Emotionally, the acute pain is powerful but temporary. 

Try to adopt a future-oriented perspective. Rather than seeing the discovery of cheating as a permanent life sentence, I suggest viewing it as the end of a relationship that was not sustainable and as an opportunity to rebuild in healthier ways. 

For practical legal outcomes, the client should focus on documentation, financial protection, and effective counsel. For emotional outcomes, focus on therapy, social support, and time to grieve and recover.

Katie Garner: Can someone hide a high-profile cheating scandal in court? What options exist to keep things private?

Jay: A case’s visibility depends on the facts. If an affair is already public through media or corporate channels, concealment becomes difficult. Nevertheless, many aspects of divorce can be handled privately. 

Negotiation, mediation, and settlement can limit public exposure because they avoid contested hearings. Parties can request protective orders for sensitive documents, and in limited circumstances, judges may seal filings. 

The better long-term approach is to prioritize privacy and avoid escalating the public spectacle. The person considering exposure should weigh short-term vindication against long-term consequences. Public humiliation rarely serves future interests.

Katie Garner: If a betrayed spouse is worried about paying for things they did not buy or co-signed on, should they bring those claims to court?

Jay: Shared debts and obligations are commonly addressed in divorce proceedings. Courts will consider who used marital resources to purchase what and how to allocate responsibility for debts. If one spouse funded a purchase for an affair partner with marital funds, that may be a compensable claim. 

Conversely, normal purchases like family vacations paid by one spouse during the marriage will typically be deemed marital expenses. Documentation of payments, credit card statements, loan contracts, and the timing of purchases help the court determine equitable outcomes. 

In short, financial disputes over shared obligations are addressed in divorce, but the remedy depends on traceable financial impact rather than moral culpability.

Katie Garner: What practical first steps should someone take the day or week after discovering cheating?

Jay: Here’s a checklist to help you get started:

• Secure financial records: Save bank statements, credit card statements, mortgage documents, retirement account statements, and any records that show where money moved during relevant periods.
• Limit impulsive financial decisions: Avoid significant withdrawals or transfers that could create additional disputes or damage credibility in court.
• Document instances of financial misuse: If funds were used to purchase gifts or support another person, note dates, amounts, and the nature of the transactions.
• Consult a qualified family law attorney: Get a professional assessment of what evidence matters and what legal steps can protect your interests.
• Seek emotional support: Contact a therapist, counselor, or trusted confidant. The attorney will handle legal strategy so the person can focus on healing.

Early, calm actions protect rights without feeding the emotional impulse to escalate. The attorney’s role is to gather what is necessary and advise on what is not worth the personal cost to pursue.

Practical legal considerations summarized

These are the key legal takeaways regarding cheating and divorce:

1. Cheating is often a reason marriages end, but it usually does not change the fundamental legal framework of divorce.
2. Courts focus on equitable distribution of marital assets, spousal support when appropriate, and child custody based on best interests.
3. Evidence of financial misconduct tied to an affair is legally relevant and should be documented and pursued when necessary.
4. Custody decisions hinge on parenting capacity, stability, and the child’s welfare, not on marital fidelity.
5. High-profile public exposure increases risk and rarely advances legal goals; privacy-preserving strategies are usually in the client’s best interest.

Emotional perspective and long-term approach

Throughout the proceedings, it’s vital to maintain the right perspective. The acute pain of discovering cheating is valid and intense. That pain can motivate destructive choices or protective action. Channel that energy toward rebuilding life and securing legal rights. 

Take constructive steps now so that you’re better off in the long run. Hiring a lawyer who can handle logistics gives space to grieve and recover without becoming consumed by evidence-gathering that serves no legal purpose.

When cheating does make a difference in divorce proceedings

Although cheating often does not alter the basic legal outcome, there are clear circumstances where it can matter:

• When marital funds were spent to support the affair or when assets were transferred to conceal purchases.
• When the affair involves criminal behavior or people who pose a risk to children.
• When property was purchased or gifted to the affair partner with marital funds in a way that can be traced and challenged.

In these situations, attorneys use financial discovery, subpoenas, and forensic accountants to build a record. That targeted approach uses evidence appropriately and avoids unnecessary emotional damage.

Advice for choosing an attorney

We advise selecting counsel for both emotional fit and practical skill. Important factors include:

• Experience in family law and familiarity with equitable distribution and custody analyses
• Willingness to explain what the legal system can realistically do about cheating
• Ability to coordinate financial discovery when needed
• Comfort working with mental health professionals to ensure the client has support during the process

Choosing the right attorney allows a client to feel supported legally and emotionally while they focus on the broader task of rebuilding.

Final thoughts

To reiterate, it’s important to be realistic: cheating is hurtful, but the legal system has boundaries. People must accept that judges are not in the business of settling moral scores. Instead, the system is designed to divide property fairly, protect children, and provide support where warranted. 

The most effective path for someone facing the fallout of cheating is to seek good legal advice, collect financial evidence only where it matters, prioritize privacy where possible, and pursue emotional care. In time, a person can rebuild a life that is better than what was lost.

Frequently Asked Questions

Does cheating automatically mean I will get more assets in a divorce?

No. Cheating alone usually does not result in a larger share of marital assets. Courts focus on equitable distribution based on financial contributions, length of the marriage, and other statutory factors. Cheating is relevant if it caused financial harm, such as spending marital funds on the affair partner.

Will cheating influence child custody decisions?

Typically no. Custody decisions are determined by what is in the child’s best interests. Being unfaithful does not automatically make someone an unfit parent. Child custody can be affected if the affair involves criminal conduct, threatens the child’s welfare, or involves a person close to the child who could harm them.

Should I collect texts, photos, and social media posts proving the affair?

Collecting evidence is useful when there is a legal advantage to doing so, for example, to prove financial misconduct. Otherwise, endlessly gathering such material may hinder emotional recovery and provide little legal benefit. Consult an attorney to determine what is necessary.

Can a spouse be held responsible if they used joint funds to buy gifts for their affair partner?

Yes. If marital funds were used to purchase gifts or assets for an affair partner, that can be relevant in equitable distribution. Documentation and tracing of funds are necessary to pursue reimbursement or an offset in property division.

Is there a way to keep a high-profile cheating scandal out of court records?

Some strategies can limit public exposure, such as negotiating a settlement, using mediation, and requesting protections for sensitive filings. However, if the matter is already public through media or corporate incident, completely hiding it may be difficult. Privacy should be balanced against long-term interests.

What should I do first after discovering cheating?

Secure financial records, avoid impulsive financial moves, document any suspected misuse of marital funds, consult a family law attorney, and seek emotional support from a therapist or counselor. Early measured steps protect legal rights without amplifying emotional harm.

How common is cheating as a cause for divorce?

Cheating is a common reason marriages end. While national divorce statistics vary, infidelity frequently appears as a precipitating factor. Regardless of frequency, the legal consequences of cheating vary and are often limited unless there is financial misconduct or risks to children.

Can a judge “punish” a cheating spouse?

Judges do not punish moral wrongdoing in divorce the way criminal courts do. A judge’s role is to allocate assets and resolve parenting and support issues. Punishment only arises indirectly if the misconduct caused demonstrable financial harm that affects division or support.

This interview is adapted from the Split Happens podcast episode “Does cheating impact your divorce? Sasso Guerrero & Henderlite explains what really matters in court” by News4JAX The Local Station. For the full episode and to submit questions, visit News4JAX.com or the News4JAX YouTube channel.