When filing for divorce, you're required to have a valid legal reason or grounds for the divorce. There are fault and no-fault grounds. Adultery is one fault-based reason for divorce, meaning the spouse seeking the divorce must prove the other spouse's wrongdoing.
Adultery is often defined as voluntary sexual intercourse by a married person with someone besides his or her spouse. While intercourse is usually required, something less may amount to adultery. State laws can vary somewhat on the elements or definition of adultery. Adultery is stated as a reason for divorce in the laws of most states with fault-based divorce.
Choosing Grounds: Adultery or No-Fault?
You may choose to seek a divorce based on adultery instead of a no-fault divorce. Reasons behind your choice may include:
- A no-fault divorce could take longer than a divorce based on adultery
- State law could allow the misconduct of adultery to be used as a factor in deciding issues such as alimony and property division
Every case is different, and your divorce law attorney can help you choose what's best for your situation.
You must prove the grounds of adultery. Adultery can be hard to prove and you need supporting evidence from an additional person. A feeling or a belief that your spouse committed adultery isn't enough proof. It's usually not enough for both spouses to admit that one committed adultery. The proof needs to be independent.
Generally, you won't have direct proof of adultery, such as an eyewitness account or photos. Given the situation, someone committing adultery will try to keep a low profile, and direct proof is hard to get.
Your next option is to use indirect proof or circumstantial evidence. Adultery is proved by indirect evidence based on implications. This indirect proof needs to show:
- Your spouse had the chance to commit adultery, such as being alone with the other person, and
- Your spouse had the inclination to commit adultery, meaning given the situation, sexual intercourse was likely to take place
Examples of indirect proof showing opportunity could include hotel or travel records. Indirect proof of inclination could be public displays of affection or love letters.
If your spouse has found someone else and you think the marriage is over, you may want to consult a divorce attorney before confronting your spouse. Your lawyer can advise you on filing for divorce, whether or not using adultery as grounds is right for your case, and getting the evidence needed to prove your case.
Questions for Your Attorney
- How much circumstantial evidence is needed to prove adultery?
- Once I file for divorce, can I change my mind on grounds for the divorce?
- My spouse is involved in a homosexual relationship. Is that considered adultery?