When the spouse who had an affair files for divorce

When you receive the complaint, start by organizing the following.

The complaint contains only your spouse's side, so it is natural to get angry reading it. Rather than sending a text rebutting it right away, it is better to mark the untrue parts and put them in your answer. If a notice of a mediation session came with it, check the date too.

• Write down the date you received the complaint. Your answer is due within 30 days of being served.
• Mark the parts of the complaint where your spouse claims you were at fault, and note by date what is untrue.
• Keep the messages, photos and card records showing the affair in their original form.
• Think through whether you do not want a divorce, or whether you could agree if the terms are right. Your answer will differ depending on this choice.

The Supreme Court in principle does not allow a divorce claim by the spouse mainly responsible for the breakdown of the marriage (en banc decision of September 15, 2015, 2013므568). However, an exception may be recognized if it appears that the other spouse also has no intention of continuing the marriage.

So simply saying 'I won't agree to a divorce' is not enough. In a decision of June 16, 2022 (2021므14258), the Supreme Court said that the intention to continue the marriage should be judged by actual words and conduct, not by what is said in the lawsuit. There needs to be a record of efforts to maintain the relationship, such as agreeing to couples counseling recommended by the court, keeping in contact about the children, and asking for living expenses.

Even small things, such as messages asking for living expenses or records of suggesting you attend a child's birthday or school event together, add up and matter. Conversely, posting criticism of your spouse on social media during the lawsuit or refusing all contact can be used as grounds that you have no intention of continuing the marriage.

If the court recommends couples counseling or a family investigation (가사조사), cooperate as far as possible. If your spouse keeps seeing the affair partner even during the lawsuit, record that as well to show that their responsibility is still heavy.

If you accept the divorce itself but want to dispute the terms, you file a counterclaim (반소) for compensation for emotional distress (위자료), property division (재산분할), designation of the person with parental authority and the custodial parent, and child support. If your spouse wants a quick divorce, there is room to negotiate the terms in mediation.

You can also claim compensation from the affair partner. Whether to bring the claim together in the same family court case or as a separate civil lawsuit is decided by looking at the evidence and the affair partner's address.

When filing a counterclaim, you need to organize the list of assets, records of your contributions, and who has been caring for the children. Your share does not shrink just because your spouse sued first, so do not rush; weigh the terms carefully.

• Sending a message in anger saying 'Fine, I'll give you a divorce'. It can be used as grounds that you have no intention of continuing the marriage.
• Secretly opening your spouse's phone or installing a location-tracking app. This can become a separate criminal matter.
• Telling the affair partner's workplace or posting about it on their social media. It can turn into a defamation dispute.
• Speaking badly of your spouse to the children or blocking visits. It works against you when the custodial parent is decided.

At Jisan Law, the managing partner consults with you personally, decides with you whether to keep the marriage or dispute the terms, and prepares the answer and counterclaim accordingly. In mediation, we check even the wording of the record so that you do not lose the outcome you want. Contact us through the chat on this page before 30 days pass from receiving the complaint.