Photo by Carly Rae Hobbins on Unsplash

There are many reasons that a person may have an affair, if you are married and having an affair and  your spouse has not discovered the affair, you should probably end the affair, get some personal counseling, consider marriage counseling and schedule a consultation with a family law attorney (also known as a divorce lawyer) regarding the possible consequences of a divorce or whether a postnuptial agreement might be a consideration in your case.   From a legal standpoint you should not admit to your spouse that you have had an affair or "cheated" on them if they have not discovered it.  If your spouse has discovered you are having an affair or had an affair, you should immediately consult with a family law attorney or divorce lawyer.  This blog is written to very broadly address the issue of how you should proceed with regards to legal matters if your spouse has discovered that you are having or have had an affair.  If you have any questions regarding these issues in your personal life, please schedule a consultation by clicking on this link.

Should I Consider a Postnuptial Agreement to Stay Together?

If your spouse indicates that they are willing to attempt to get past the affair and maintain the relationship, then I strongly suggest that you get personal counseling and marriage counseling before considering a postnuptial agreement.  First, unlike prenuptial agreements, postnuptial agreements are not as reliable as a prenuptial.  Prenuptials are well established as valid in Michigan, while it appears that postnuptials are not always enforced depending on the circumstances.  Second, most postnuptial agreements that the your spouse would want you to sign to continue with the relationship would probably be detrimental to you or otherwise contain some form of penalty for the affair or penalties if there are any future transgressions.  You may agree to give up too much under the circumstances in order to attempt to preserve the marriage, because while fault can be taken into account in the division of property or granting of alimony, it is only one factor among many that the court is required to consider.  Also, an affair is almost never considered when determining long-term custody and parenting time of the children.  Further, the modern divorce courts in Oakland and Macomb County often consider an affair to be a symptom of the breakdown of the marriage and not the cause.  At any rate, you should definitely consult with a well-versed family law attorney prior to signing a postnuptial agreement. 

Should I Just File For Divorce?

Very frankly, after having practiced in the area of family law since 1996, the answer is most likely yes.  Marriage is difficult and once the trust has been fractured by an affair, it is almost always impossible to completely recover, and there was a reason that you had the affair in the first place.  Unfortunately, in most cases, even if you obtain counseling, do the work and get through this issue, something else comes up in the future and you wind-up getting divorced anyway.  You cannot get this time back, while alternatively filing for divorce allows you to move forward with your future rather than being stuck in the past.

While divorce is a "no-fault" state when it comes to filing for divorce, fault can be taken into account when dividing property or awarding alimony, however it is only one of many factors.  One should keep in mind that most courts today look at an affair as a "chicken/egg" thing as mentioned above, was the affair the cause of the breakdown of the marriage or was it a symptom of a relationship that was already broken down, maybe long ago.  Further, if you do have an affair, and the other spouse catches you, but does not file for divorce and you then remain together for a considerable time after the affair, the court will most likely not give any consideration to the affair, because the other spouse "acquiesced" to and forgave the affair which means the court will most likely not consider the affair as the cause of the breakdown of the marriage.

At any rate, if you are married and are having an affair, you should strongly consider consulting with a family law attorney or divorce lawyer to discuss the possible legal ramifications of your actions.  If you have questions concerning these issues and/or would like to schedule a confidential consultation, please do not hesitate to contact us by clicking on this link or calling (248) 608-4123.