Adultery is one of the most common grounds for divorce and may be stated as a reason for divorce in the majority of states that allow fault divorces. Adultery is also one of the most difficult grounds to prove because the party alleging adultery must present evidence that his or her spouse is actually guilty of adultery.
What is Adultery?
Generally, adultery is defined as voluntary sexual intercourse by a married person with someone besides his or her spouse and includes both heterosexual and homosexual activity. In most instances, intercourse is required to prove adultery. However, certain other sexual behavior may amount to adultery under the laws of some states.
Proving adultery is difficult because it requires more than a feeling or belief on the part of the accusing spouse. Moreover, an admission of adultery by one spouse is usually insufficient to prove adultery.
Because there is usually no direct evidence of adultery, such as photographs or eyewitness accounts, it is most often proven with circumstantial evidence. In most jurisdictions, if the evidence offered as proof of adultery is subject to two interpretations, one of innocence and one of guilt, it is insufficient to prove adultery. However, if the circumstantial evidence presented by the accusing party demonstrates both an opportunity to commit adultery (being in a hotel room with someone who is not your spouse) and an adulterous disposition on the part of the accused (registering in the hotel as husband and wife), most courts will find adultery.
Because adultery is so difficult to prove, it is a good idea to also allege cruel treatment as a ground for the divorce. In jurisdictions that allow cruel treatment as a ground for divorce, evidence which may be insufficient to prove adultery, such as repeated threats to commit adultery or attempts to commit adultery, is usually sufficient to prove cruel treatment.
Moments of Infidelity
In some jurisdictions, courts will find adultery even if the activity occurred after the separation of the parties. This is the case even when the activity occurred after the petition for divorce was filed.
Alimony Award and Division of Property
In most jurisdictions, a party who is found to have committed adultery is not entitled to receive alimony. However, he or she may be entitled to an equitable division of property. Where equitable division of property is in issue, the conduct of the parties during the marriage and with reference to the cause for the divorce, is relevant and admissible.
- Whether to seek a No Fault Divorce or to allege adultery and go to the time and expense of trying to prove it;
- The type of evidence needed to prove adultery (direct evidence vs. circumstantial evidence);
- Whether you have sufficient evidence to prove adultery or just a suspicion or feeling that your spouse has been unfaithful; and
- Whether you or your spouse may seek alimony or an equitable division of property.
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