Adultery is one of the most painful betrayals in a marriage. But while it’s one of the most common causes of divorce today, it may or may not really matter in a divorce proceeding. How can adultery affect what you get or don’t get in your divorce settlement? And how do you prove your spouse’s infidelity to the court?
Adultery and Fault-Based Grounds vs. No-Fault Grounds
Every state in the United States recognizes some form of no-fault divorce. A no-fault divorce doesn’t require either spouse to prove marital misconduct – including adultery — to end the marriage. One party simply has to say that the marriage is no longer viable and fulfill state requirements.
In states like Virginia that still recognize marital misconduct as grounds for divorce, adultery is typically one of the most commonly used fault-based grounds for divorce. In a fault-based divorce proceeding, the spouse making the allegations of misconduct has the burden of proving to the court that the other engaged in an extramarital relationship that caused the breakdown of their marriage.
Why does using fault-based grounds matter? Filing for divorce based on fault-based grounds can affect the outcome of the divorce, especially when it comes to the court’s decisions regarding spousal support, property division, and even attorney’s fees. But just because a couple chooses not to use it as grounds for divorce doesn’t mean adultery becomes legally irrelevant. Adultery can still affect the outcome of a no-fault divorce. However, its relevance is not what people typically think.
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Courts Do Not Punish One Spouse and Reward the Other
Courts don’t use divorce proceedings as opportunities to punish one spouse and reward the other.
Even in fault-based divorces, the court’s focus is not on assigning blame to punish one spouse. Instead, judges aim to resolve the marriage’s legal aspects in a way this is fair under the law considering the circumstances. The court isn’t concerned with personal betrayals or moral judgments unless they have a direct and measurable impact on legal outcomes. Otherwise, the court remains very neutral on the emotional aspects of the divorce.
Proving Adultery in a Fault-Based Divorce
When filing for divorce on the grounds of adultery, there is a burden of proof, meaning the accusing spouse must provide clear and convincing evidence to the court that their spouse had sexual intercourse with someone else during their marriage. This means the evidence must be highly persuasive and well-documented.
Proof in fault-based adultery cases typically involves a combination of
- Direct evidence, such as admissions or messages between the other spouse and the third party
- Circumstantial evidence, including hotel receipts, witness testimony, or patterns of behavior that suggest the other spouse had both the inclination and opportunity to commit adultery
- Private investigator reports or photos showing the spouse and the other person entering and leaving private spaces together, such as hotel rooms and homes
Successfully proving adultery in a fault-based divorce can offer several strategic advantages. However, if the standard of proof isn’t met, the court may dismiss the fault claim altogether.
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Proving Adultery in a No-Fault Divorce
In a no-fault divorce, you do not need to prove wrongdoing to dissolve your marriage. However, adultery can still be a relevant factor when the court addresses related matters like property division and spousal support.
While the “clear and convincing” standard doesn’t have to be met in a no-fault divorce, there still needs to be proof if you want adultery to influence the terms of your divorce. For example, if you have evidence your spouse used significant marital funds to support their affair, you may seek financial compensation in the division of your marital property. Adultery may also be considered when judges make a ruling on spousal support. The required evidence in these cases may be less stringent, but it still must be credible.
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Is Adultery Relevant in Your Particular Case?
Yes, infidelity is hurtful, and you have every right to be angry. But judges aren’t in the business of evening your score with your spouse. One of the biggest mistakes divorcing spouses make is trying to use adultery to gain moral high ground, only to find the court is largely unmoved.
If the affair didn’t impact your finances or your children, making it the centerpiece of your divorce can backfire. Judges are focused on resolving legal issues, not emotional grievances, so if your evidence is weak, it may be dismissed or even paint you as being the vengeful or uncooperative spouse.
Before considering using adultery in your case, ask yourself:
- Did the affair result in a financial loss or misuse of marital funds? If your spouse used joint savings or ran up credit card debt supporting their affair, it may impact how the court divides your property. Judges can consider this type of financial misconduct when deciding what is fair in property distribution and may award you a larger share of assets to make up for your losses.
- Did it have an effect on your children’s safety or emotional well-being? Courts are primarily concerned with the best interests of a child in family law matters. If your spouse exposed them to instability or inappropriate behavior, or if the affair created a toxic home environment, the court could weigh that when making custody or visitation decisions.
- Will it change the outcome of your spousal support? In some states, a spouse who commits adultery may be barred from receiving spousal support. Furthermore, the court may weigh a higher-earning spouse’s marital misconduct when making spousal support decisions, leading to a more favorable support award for the non-offending spouse.
If your answer to these questions is no, it may be best to focus your case on practical and provable issues rather than making adultery the focal point.
How to Decide What is Best for You
Adultery may or may not be the legal grounds for your divorce, but it can still change the outcome of your case. The key is understanding how the law treats adultery in both fault-based and no-fault proceedings. It’s also important to stay focused on what truly matters – what you can prove, your finances, your children, and how to move forward strategically.
Every case is unique, and making the right decisions means understanding how the law applies to your situation. Speaking with an experienced attorney can help you weigh the pros and cons and determine the most effective approach for your specific case. At Melone Hatley, P.C., our family law team can provide the guidance and advocacy you need. Call us today at (800) 479 – 8124 or contact us through our website to schedule a free consultation with one of our Client Services Coordinators.
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