Suspecting that your spouse has been unfaithful can feel like a gut punch. The emotional fallout, the anger, the confusion, and the grief can feel overwhelming.
If your suspicions have led you to consider a divorce, could you use adultery as grounds? And would you need to prove it? Let’s take a closer look at how adultery works as grounds for divorce and what options you have if you don’t really have solid proof of marital misconduct.
Adultery as Fault-Based Grounds for Divorce
Many states allow spouses to file for divorce based on either no-fault or fault-based grounds. Adultery is one of the most commonly cited fault-based reasons for divorce in states that recognize fault-based grounds.
Filing for divorce on the grounds of adultery can sometimes have a significant influence on court decisions, especially when it comes to things like spousal support and property division. However, the burden of proof is on the spouse making the accusation.
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If You Are Using Adultery as Grounds for Divorce, You Will Need More Than Just a Hunch
Courts don’t usually concern themselves with the emotional aspects of a marriage’s breakdown, but the functional and financial elements. This means if you use adultery as grounds for divorce, the court will want to see how your spouse’s adultery has affected you in ways other than emotionally. Furthermore, if you suspect your spouse has cheated, it’s important to understand that the court will want more than suspicion and gut feelings to consider it in making decisions.
To use adultery as grounds for divorce, you will need to show clear and convincing evidence that your spouse had both the opportunity and the inclination to engage in a sexual relationship with someone else. The legal standard of clear and convincing evidence sets the bar higher than mere suspicion but lower than absolute certainty. This is meant to protect people from baseless claims while allowing the truth to emerge when credible evidence exists.
While you don’t have to actually catch them in the act, you need more than circumstantial evidence or a vague suspicion. Evidence the court may consider can include:
- Text messages, emails, or DMs
If your spouse is sending romantic or sexually explicit messages to another person, this can demonstrate the inclination to commit adultery. Courts have accepted screenshots and chat logs as valid forms of evidence. - Hotel or travel records
If your spouse booked a hotel room with someone else, or if you have evidence they traveled together, such as plane tickets, Airbnb reservations, or other evidence, this can help show both the opportunity and intent. - Eyewitness accounts
Testimony from someone who saw your spouse enter and leave another person’s home late at night and stay for several hours (or overnight) can be persuasive, especially if that behavior is repeated. - Photos or video surveillance
Images showing your spouse and the alleged partner holding hands, kissing, or entering a hotel together are strong evidence, especially if timestamps and context support the claim. - Dating app activity
Profiles on dating apps such as Tinder, Bumble, or other sites, particularly if actively used during the marriage, can show a pattern of behavior that supports claims of infidelity. - Private investigator reports
A licensed PI can track behavior and document suspicious activity that supports a claim of adultery. - Financial records
Unusual charges on credit cards for gifts, restaurants, or hotels can help establish an opportunity and support claims of a romantic or sexual relationship, especially tied to a specific individual.
What If You Don’t Have Clear and Convincing Evidence?
If you don’t have enough evidence to prove adultery in court, you do have options.
You can still pursue a no-fault divorce. No-fault divorces are generally quicker and less emotionally draining. Instead of focusing on blame, they focus on the fact that the marriage is no longer viable. For someone who suspects infidelity but lacks hard evidence or simply doesn’t want to relive the betrayal in a courtroom, it can be a more practical choice.
Some people begin with the intention of filing for divorce based on adultery but after speaking with their attorney and evaluating what evidence is available, they opt for the no-fault route. That choice doesn’t mean your pain or experience isn’t valid. It just means you’re taking a faster and more emotionally manageable path.
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Can Suspected Adultery Still Affect the Outcome of Your Divorce?
Even if you don’t formally cite adultery as grounds in your divorce petition, it can still factor into certain aspects of your divorce.
Courts can take “wasteful dissipation of marital funds” very seriously when making decisions in a divorce proceeding. For example, if marital significant funds were used to further an extramarital affair and if your spouse spent large sums of money on gifts, travel, or housing for the other person, that financial misconduct might affect the court’s decisions on the division of your assets or spousal support.
Regarding custody, courts typically focus on the child’s best interests. Adultery, by itself, is usually not considered relevant in custody determinations unless it directly and adversely impacts the children, such as exposing them to unsafe individuals or causing the parent to neglect their parental duties. While the court may acknowledge that infidelity occurred, it typically doesn’t consider it in custody determinations unless there is clear evidence it is harmful to the child.
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What About Hiring a Private Investigator?
Divorce involving adultery can be highly emotional, and concrete answers can be hard to come by. Hiring a private investigator may seem like a good way to get evidence and clarity. A licensed investigator can legally gather evidence, such as tracking whereabouts, taking photographs, or identifying communication between your spouse and another party.
If you are considering filing for divorce on adultery grounds and are serious about pursuing it in court, an investigator can be helpful. But this is a decision worth making with the help of your divorce attorney. There can be significant costs involved, and there’s no guarantee that the investigation will yield the evidence you need. It’s also important to remember that even with rock-solid proof of adultery, pursuing a fault-based divorce may not result in a significantly different outcome, unless your evidence directly shows how it might impact your financial support or asset division.
Speak With a Divorce Attorney Before You Decide
If you’re feeling unsure about how to proceed, or are overwhelmed by suspicion but lacking proof, speaking with a family law attorney can help. An attorney will explain your options, help you weigh the pros and cons of pursuing a fault-based divorce, and help you decide whether it’s worth pursuing or whether a no-fault divorce would better serve your interests.
Adultery can feel like the ultimate betrayal. Unfortunately, the court doesn’t usually get involved with the emotional aspects of divorce. The experienced family law attorneys at Melone Hatley, P.C. can help you understand your legal options and protect your rights whether you decide to pursue a fault-based or no-fault divorce. We will be your dedicated partners throughout the process. Call us today at (800) 479 – 8124 to schedule a free consultation with one of our Client Services Coordinators.
Schedule a call with one of our client services coordinators today.
