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Adultery as Grounds for Divorce

Adultery is when a spouse has a sexual relationship outside the marriage. If you're getting a divorce and adultery has taken place, it can have a significant impact on the divorce.

All states require you to give a reason for your divorce. Most states allow you to get divorced simply because you and your spouse no longer get along. Some states still require one spouse to allege fault, or that one spouse has acted in a way that justifies a divorce.

In states where fault is required or allowed, adultery can be the reason for your divorce. Proof of adultery may change the amount of child support and alimony a spouse receives. The spouse who was not at fault may also receive more of the household property in the divorce settlement.

If You Are Legally Separated, Is It Still Adultery?

Many states require you and your spouse to live separately before you can be divorced. The time of legal separation can be as long as five years.

You and your spouse are still married even if you are separated. If you or your spouse has a sexual relationship with anyone else during your legal separation, it can be considered adultery. It can affect your divorce in the same way as adultery in the marriage.

Do You Need to Prove Adultery if Getting a Divorce?

In a divorce, if you are claiming that your spouse has committed adultery, you must prove this to the court. There are two ways to prove adultery:

  • Direct Evidence. This is the best kind of proof. It can be a witness, a picture or some other proof that clearly shows the adultery. Direct evidence can be very difficult to get.
  • Circumstantial Evidence. If you do not have direct evidence, you will need to prove adultery in a different way. Circumstantial evidence may be used instead. You and your attorney will need to give the court information about your spouse. This information must show that your spouse had the opportunity and the interest to have a sexual relationship outside your marriage. Adultery may be proven if, based on your evidence, it seems reasonable to the court.

Do You Need an Attorney?

In any divorce, it is a good ideal to consult an attorney. If you suspect adultery, it may be even more important. An attorney can explain the divorce law of your state and how the law views adultery. He or she can also help you get your best result within the law.

Be sure to ask your attorney:

  • If he or she is experienced in divorces based on adultery
  • If you have a choice of fault-based or no-fault divorce
  • Which one is right for you if your spouse has been unfaithful
  • What evidence you will need to prove your case.