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Those Cheating on Their Marriage Must Pay

A recent Arkansas Court of Appeals case points out that those cheating on their marriage must pay the price for the paramour.  It further illustrates the practical problem arising from the current social issue of same-sex marriages, which under current Arkansas law could  cause those who seek an alternative lifestyle to lose custody of their minor children.

The Arkansas Court of Appeals, in a December 2011 decision, addressed two interesting social problems arising from a divorce where a same-sex relationship occurred.  Robert and Lisa Bamburg married in 1988, had two children, separated in 2009 and proceeded to divorce.  Both were demonstrated by the testimony to be good parents.  However, the evidence showed that  during the marriage, Ms. Bamburg developed a romantic relationship with another woman. Typically, under Arkansas law, “fault” in causing the divorce (cruelty, adultery, indignities) has little or no effect on alimony, property settlement, child custody and visitation or child support, each having their own applicable principles unrelated to whose fault may have caused the divorce.

However, in this context, the fact of the illicit relationship had two very significant impacts on the final trial decision, which was affirmed on appeal by the appellate court: First, the husband sued to recover funds that had been spent during the marriage on the illicit relationship. The court awarded Mr. Bamburg several thousand dollars for such monies, though not all that he had asked for. The appellate court, citing the 2003 decision in Williams v. Williams, 82 Ark. App. 294, 108(S.W.3d 629), held that it is permissible to have one spouse reimburse the other for improper expenditure of marital funds during the marriage for a paramour. In Arkansas, the law is settled that you have to pay for your paramour in a divorce.

Second, despite her lesbian relationship, Ms. Bamburg was awarded custody of the children. However, the court ordered that neither parent while in custody of the children could have overnight visits by romantic, unmarried partners, citing “unmarried cohabitation with a romantic partner…in the presence of a child cannot be abided.”  What is implicit in this decision is that Mr. Bamburg  may re-marry a conventional wife and continue unimpeded in her presence with any visitation awarded him by the court. However, Ms. Bamburg, not having the advantage of legal same-sex marriage in Arkansas, cannot legalize her lesbian relationship in Arkansas, and thus threatens losing custody of her children if she seeks to establish a marital-type relationship with her partner in the presence of the children.  Whether one would legally accomplish a same-sex marriage elsewhere and then “bring” it to Arkansas is unresolved in the Arkansas courts.  Bamburg v. Bamburg 2011 Ark. App.546.

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