Family Law

Can My Lover Be Subpoenaed in My Divorce?

By Aaron Thomas, Attorney

Infidelity is a very common problem in today’s marriages. While studies disagree on how many spouses actually cheat, the consensus is that infidelity in marriage is at least as common as fidelity. Divorces based on adultery are often messy, and jilted spouses sometimes go after their spouse’s lover. Whether or not your paramour can be subpoenaed in your divorce will depend on your state’s laws. This article will explain what you can expect if your spouse attempts to involve your lover in your divorce.

Subpoenas in No-Fault States vs. Fault States

The biggest factor determining whether your spouse can subpoena your lover is whether your state allows couples to divorce on fault grounds, such as adultery, or whether your state is a “no-fault” state, where any fault-based reasons for divorce are mostly irrelevant to the case.

About a third of states, including California and Florida, offer only no-fault divorce, where a spouse can file for divorce only based on irreconcilable differences or other limited grounds. In no-fault states, a spouse’s infidelity generally won’t impact property division, alimony, or child custody. The fact that you had a romantic relationship outside of your marriage won’t be enough to drag your lover to court.

On the other hand, even in the no-fault states, if you transferred marital funds to your lover or spent large amounts of money conducting the affair, a court may order that you reimburse those funds to your spouse and will likely allow your spouse to subpoena your lover in order to get information relevant to deciding financial issues. Otherwise, your lover’s testimony isn’t likely to be of much interest to judges in no-fault states and a subpoena is not as likely.

In fault states, however, an affair can have a huge impact on the court’s decisions, potentially affecting property division, alimony, and/or child custody. In about two-thirds of the United States, including New York and Texas, you can file for divorce based on your spouse’s adultery. In these states, not only can your spouse subpoena your lover, but your lover may be required to give personal and detailed information about your relationship.

To learn about the law in your state, visit our series of articles on how adultery affects alimony in your state.

What Your Lover Can Expect From a Subpoena

In fault states, your spouse can subpoena your lover by having a process server hand-deliver a subpoena directly to your lover at home or work. Some states also allow subpoena service by certified or registered mail.

Before your case goes to trial, it’s likely that your spouse’s attorney will want to take your lover’s deposition. At a deposition your spouse’s attorney will perform a recorded cross-examination of your paramour, who must answer all questions under oath.

Your lover’s subpoena may include a “Request for Production of Documents,” asking him or her to bring certain documents, letters, gifts, text messages, or other items that help prove the adultery.

Your spouse may also call your lover as a witness during trial. Your spouse’s attorney is likely to threaten to call your lover to the stand, at least to pressure you into a settlement more favorable to your spouse. While judges may vary regarding how detailed an attorney’s adultery questions may be, being called to testify about an affair is universally embarrassing. Often, the adulterous spouse is willing to make certain concessions in the divorce case to avoid an affair coming to light in a public courtroom.

Although rarely prosecuted, adultery is illegal in most states, which can have an interesting effect on divorce strategy. The Fifth Amendment of the Constitution, also known as the “right against self-incrimination,” protects citizens from being forced to admit guilt to a crime in a court proceeding. In states where adultery is illegal, a spouse can “plead the fifth” to avoid having to testify about details of the affair. While asserting your Fifth Amendment privilege is essentially admitting the affair, it at least can protect you from further embarrassment in court. In some states, adultery is illegal for both married and unmarried people, while in others it’s illegal only for married people. Check with a local attorney to find out your state’s laws on adultery.

How Adultery May Affect Your Divorce Case

Courts won’t consider adultery when deciding your divorce case in no-fault states, unless it’s tied to another issue relevant to the divorce. For example, unless you conducted your affair in front of the children or drained your spouse’s bank accounts to buy your lover gifts, your infidelity is unlikely to play a big role in your divorce case.

In many fault states, however, one spouse’s affair is a valid reason for the court to award the other spouse a larger share of the marital estate. In some states, adultery can affect the judge’s decision on alimony as well. Affairs typically don’t impact child custody decisions, however; courts tend to separate a parent’s performance as a spouse and parenting ability.

Often, the biggest impact infidelity can have on a divorce is the pressure it places on the cheating spouse to settle the case. Particularly in small towns in fault states, taking your case to trial can mean discussing the details of your affair in front of your neighbors.

Other Adultery Issues

Your state may have other laws specific to adultery. In North Carolina, for example, a spouse whose marriage has ended due to the other spouse’s infidelity can sue the paramour for alienation of affection, and in many cases, receive financial damages. Check with a local family law attorney to determine how adultery may affect your divorce case - you'll find great local lawyers in our comprehensive directory.

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