Whenever a couple decides to get a divorce, they must provide the court with a reason. Some reasons won't require proof of fault, but some reasons, like adultery do. Prove adultery in divorce is an example of what is called "fault-based" divorce. Most states, however, have what is known as "no-fault" divorce, where no proof of fault is required. If your are considering a divorce you will need to know what the laws of your state are, because some states only offer "no-fault" divorce.
As a general description, adultery is voluntary sexual intercourse between two individuals, one of whom is married and the other is not his/her spouse. Usually intercourse is a necessary requirement for adultery, however, some states include some actions less than intercourse as adultery as well. In the states that allow fault-based divorce, adultery is usually considered a reason.
Advantages in Seeking Fault-Based Divorce
Often when no-fault divorce is an option, many still choose a fault-based reason when deciding to get a divorce for several reasons. In the case of no-fault divorce the laws usually requires that the couple be separated for a longer period of time than those who are seeking a fault-based reason for a divorce. Other advantages available in some states include a greater share of the marital estate, or larger alimony settlement if the spouse can prove the fault of the divorce on the other spouse. (Marital estate refers to the property that legally belongs to both spouses at the time of the divorce).
Proving Adultery in Divorce
In order to get a divorce based on adultery there must be proof. Simply being pretty sure that your spouse is committing adultery isn't sufficient proof. Proving adultry in divorce can be extremely difficult since it requires evidence from another person. Even if your spouse is willing to admit that they committed adultery it is not always enough proof. There must be independent evidence that proves the act.
Direct proof, such as an eyewitness or photographs are extremely difficult to acquire, therefore adultery is usually proven using circumstantial evidence. Evidence which is based on implications are considered circumstantial to the case, but are generally used to prove adultery. It is therefore proven indirectly by demonstrating opportunity. An example would be that your spouse can be shown to have been in the company of someone else and there was an opportunity for sexual intercourse to have taken place. There must also have been an inclination for the two to have committed adultery, meaning that the likelihood of the two engaging in sexual intercourse under the given circumstances is high.
To prove that adultery took place, and assuming there is no eyewitness, the circumstantial evidence must logically lead to the conclusion that adultery took place, meaning it must include behavior that is not that which you would expect from a spouse who is innocent of such behavior. To prove this, the circumstantial evidence must include both an inclination and opportunity on the part of both parties involved, for the adultery to have taken place. To prove that the two were inclined to commit adultery you would need to demonstrate that they showed affection in public, or provide love letters they have exchanged, etc. In order to prove opportunity, such things as travel records or hotel receipts would suffice.
Speak with an Attorney
If you suspect your spouse of committing adultery and believe that your marriage is coming to an end because of it, you should speak with a divorce attorney. He will be able to best advise you on how to obtain the evidence that would help you prove adultery should you take your case to court and want to base your divorce on adultery.