Family Law

Grounds for Divorce: Adultery

By Lina Guillen, Attorney
Filing for divorce based on adultery may not be worth the added time and expense.

When filing for divorce, you'll need to identify a legal ground (or reason) for your request. Today, all states offer some form of "no-fault divorce," and whether it's based on "irreconcilable differences," "irreparable breakdown of the marriage," or separation, the basic principle remains the same: Spouses don't need to blame one another for the breakup or prove any wrongdoing to get divorced.

In some states, spouses can still pursue a "fault divorce," where one spouse blames the other for the split and identifies specific conduct that caused the breakup. Although they vary by state, the most common fault grounds are adultery, abuse, desertion, and incarceration.

Should You Choose a Fault Divorce?

If you live in a state that allows courts to consider adultery in a divorce, you should think carefully about whether pursuing a fault-based divorce makes sense. Fault divorces are often more stressful and more expensive than their no-fault counterparts.

Choosing a no-fault divorce should reduce both conflict and expenses. No one enjoys airing their dirty laundry, and it's even worse when it's done in a public courthouse setting. If you pursue a fault divorce against your spouse, be prepared for some backlash. And proving that an affair took place will certainly cost more: It will require additional time and expenses in attorney's fees, private investigator's fees, and court costs. A fault-based divorce might not be worth it in the end.

On the other hand, you may have valid reasons for filing a fault-based divorce, particularly if you live in a state that allows courts to consider adultery as a factor when deciding alimony or property division. Or, if you live in a state that only offers no-fault divorce based on a lengthy separation, you may not want to wait it out. For example, in Louisiana, divorcing couples with children must live apart for at least one year before they can obtain a no-fault divorce.

Before you file, you should speak with a family law attorney, who can help you understand your state's laws and how they might apply to your case. Every divorce is different, and an experienced attorney can help you choose the best legal path for your situation.

How Can You Prove Adultery in Court?

State laws vary on what amounts to adultery, but it's generally defined as voluntary sexual intercourse between a married person and someone other than the spouse. While intercourse is usually required, something less may amount to adultery. You'll have to check your state's laws (or ask a local attorney) to find out more about the specific elements of adultery in your case.

When you file for divorce based on adultery, you'll have to convince a judge that a sexual affair actually occurred. Adultery can be hard to prove, and a feeling or a belief that your spouse committed adultery isn't going to be enough.

Direct Proof

Most people don't have direct proof of adultery, such as an eyewitness account. Cheating spouses usually try to keep a low profile, so evidence of an affair is hard to get. However, a seasoned private investigator (PI) may be able to find or capture their own photos or video footage of your spouse having a sexual encounter. Make sure your PI is certified in your state (if applicable) and well versed in state and federal privacy statutes: You don't want your own PI to break any laws while gathering evidence.

Indirect Proof

Your next option is to use indirect proof (or circumstantial evidence) of adultery 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 circumstantial evidence showing opportunity include hotel or travel records, like booking confirmations and credit card receipts. Indirect proof of inclination could be public displays of affection, love letters, email messages, and text messages showing a romantic involvement.

If your spouse is having an affair, you should consider consulting with a divorce attorney before you do anything about it. Your lawyer can advise you on filing a divorce petition, whether or not you should base your divorce on adultery, and how to go about getting the evidence you need to prove your case.

Questions for Your Attorney

  • Will adultery affect the alimony and property division awards in my case?
  • Once I file for divorce, can I change my mind about the grounds for divorce?
  • My spouse has been sending someone explicit texts and nude photos. Is this enough to prove adultery?

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