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We Asked a Divorce Lawyer About the Ashley Madison Leak

Published On 08/21/2015 Published On 08/21/2015
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Now that 32 million people have had their cheating ways made public due to the Ashley Madison hack, it's safe to assume some marriages are going to be ending. So, we reached out to divorce attorney Joseph E. Cordell of Cordell & Cordell to find out what he thinks about the leak, and what role it'll play in all of those inevitable divorces.

Have there been more calls coming in since the leak?

Cordell -- who's previously had clients who were caught on Ashley Madison -- has gotten a considerable amount of calls since the user data was leaked. "Mainly from men asking what impact the evidence would have on them in a divorce, and whether the evidence is admissible in court."

Is the evidence admissible?

"It varies from state to state, but for the most part, it's likely to be admissible, since the party offering the evidence -- their wives -- would have what's called 'clean hands,' meaning that they would not have engaged in any elicit or improper behavior -- instead, that was the action of the third party. There are a few states that probably would exclude [the evidence], but the majority of sates will permit it. The question becomes, what is its relevance?"  

What would make the evidence relevant? 

"It's often relevant, but in ways people might not expect. Most states have adopted a sort of 'no-fault' perspective to divorce. As a result, most states don't punish people in terms of property division or maintenance for marital misconduct. But, courts in virtually all states are willing to consider martial misconduct when it involves a misuse or dissipation of the party's assets -- so to the extent that any money has been used to pursue this relationship... courts will be interested."

Martial misconduct is also relevant when it comes to custody battles, "to the extent that it shows that somebody's lifestyle, or their habits, or the people that they have in their home would not be wholesome for the safety of the child and would affect the best interest of the child -- then it's relevant, and it's testimony that the court should and would hear.

How embarrassing is this going to get?

"So in cases like that, at a minimum, it becomes very embarrassing for the party -- the discovery of something like Ashley Madison would tend to stimulate a number of questions." Cordell also says that the other party may send out subpoenas if they know who their spouse cheated on them with, and they may bring that person in for a deposition.

"That kind of psychological warfare, I'd be worried the opposing council would be inclined to engage in that -- and that can occur in a lot of ways that embarrasses the client. But to the extent that it would have any impact on the best interest of the children, yeah, it's relevant for custody. And, for example, if it were the wife that had the affair, I would want to confirm the extent of the relationship. I would want to know more about this guy. And the moment I send out a subpoena to this guy, then guess what -- his wife now knows. So, it can spread like a bad cold. "

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What's the best advice you could give your client in this situation?

"Judges in divorce court have such broad discretion to determine, for example, best interest and fair and reasonable settlement and what amount of maintenance is awarded... in many states, that varies greatly based on the judge's particular predilections. So it's very important what the judge thinks of a party. We remind our clients throughout the process that it's important for them to appear reasonable. I want the judge to understand that even when there's a lot of litigation and ugliness and a number of hearings, that my client is always willing to be reasonable. If the judge has an impression of a party that is distasteful, it just doesn't benefit -- and that can occur in so many ways... with attorney fees, with whether you get continuances, it can affect -- directly or indirectly -- custody issues."
 

What is the best defense for someone who has been caught in this scandal?

"An attorney can argue that this evidence is not admissible under their state's statute -- that would be the avenue of first resort. But when children are involved, judges are inclined to be very permissive in admitting evidence.

"If I'm representing the guy that's engaged in this behavior, and if it appears to me that the evidence cannot be excluded, I'll prepare him for what I think will be at most embarrassment. It's going to be more of a psychological attack than anything else -- the notion that by humiliating him, he's going to make concessions to the settlement that he wouldn't otherwise make. That's the way this often plays out -- many parties that are caught with their hand in the cookie jar in this way will be more inclined to settle, because they're concerned about their employer and their family... and maybe the family or employer of their paramour. There are those intangible non-monetary factors that will often drive a settlement, and lawyers know this.
 

Outside of the divorce, would you tell a client to go after Ashley Madison?

"I would recommend to my clients that they explore the possibility of whether or not they can participate in a class action. Some of them though, because of the embarrassment factor and their reputation, will simply want to move on. That will be the reaction of the substantial majority of these victims."

How have sites like Ashley Madison changed the world of cheating and divorce?

"Historically, many people were protected from adultery in large part because of the improbable factors that have to come together [ie. having a rough patch in your marriage, having the opportunity to cheat, and meeting someone to cheat with]. But the Internet multiplies and facilitates transactions. And now parties who go through this vulnerable period in their marriage are online, and they can set up these meetings, and once they're discovered, it often ends in divorce. Spouses tend to be unforgiving, especially when there is premeditation, which there is here. You can't argue it's a crime of passion."

This interview has been edited and condensed for clarity.

Lucy Meilus is a staff writer for Thrillist. Follow her on Twitter at @Lucymeilus and send news tips to news@thrillist.com.

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