What Is The Legal Definition of Adultery?

A general legal definition of adultery is having sexual relations between a married person and a third party.  Adultery is also referred to as infidelity, extra-marital affair and cheating.  There are some states where proving adultery in divorce is considered grounds for divorce.  Other grounds that are recognized are desertion and non-support.  However, the majority of states have no fault divorce laws.  A number of states still consider adultery a criminal act, but do not prosecute the adulterer.  Committing adultery harms the marriage once the other spouse find out about the act, so punishing the cheating spouse with criminal charges doesn’t really make sense in modern society.  Courts are more interested in the financial impact that adultery may have had on the marital assets than the act itself.  Some judges will consider the amount of money spent on the third party during the marriage in determining property division and spousal support or alimony.   

Adultery Could Affect Alimony or Spousal Support Awards

In the olden days, couples would result to hiring private detectives and other means to catch their spouse in the act of committing adultery to either obtain a divorce and/or avoid paying substantial sums of alimony.  In fact, there are still a number of states that will consider adultery when deciding to award spousal support or alimony to a spouse who has cheated in the marriage.  If you have committed adultery, it may be more difficult to convince the court to award support to you or it may affect the amount you are awarded.  If you suspect your spouse of adultery, in order to catch your spouse in the act of cheating, you could spy on your spouse as long as you don’t break the law, but you should be prepared for the confrontation if your spouse discovers you are spying.  There are state and federal laws that regulate the use of certain types of surveillance equipment and recording devices that you should be aware of as well.  You should consult with a family law/divorce lawyer if you are getting a divorce and suspect your spouse of committing adultery or if you have committed adultery to find out how it will affect divorce issues and your divorce settlement.

No Fault Divorce 

If you live in a no fault divorce state, then you don’t need to be concerned about proving adultery in divorce in order to obtain your divorce.  You don’t need a reason for divorce. This saves the parties embarrassment and keeps their affairs private.  Irreconcilable differences and the fact that the marriage is irretrievably broken are sufficient for one party to file for divorce if they want to end the marriage.  You don’t need the other spouse’s permission.  However, the parties do need to resolve the marital issues such as:

  • Property division
  • Spousal and child support
  • Child custody and visitation
  • Parental rights
  • Division of marital debts  

The court prefers that the couples resolve divorce issues on their own, but if they are unable to do so, the court will decide for them.

Hire an Attorney 

Divorce issues are complicated.  You should hire a family law/divorce attorney to represent you in court, especially if your state recognizes adultery as grounds for divorce.  Divorce issues can become heated and contested, and you should have an attorney looking out for your best interests.

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