In 2010, New York became the last state in the country to adopt no-fault divorce. No matter where you live, you no longer have to prove fault, such as adultery, to get a divorce. In 17 states, you don’t even have a choice: You can file only on no-fault grounds. In these jurisdictions, your spouse may be guilty of infidelity, but the courts don’t care. Most other states, however, consider adultery a ground for divorce.
The precise definition of adultery varies among the states that consider it a fault ground. In New Jersey, the law doesn’t specify what intimate acts constitute adultery, only that a spouse must stray with the intention of “rejecting” the other. In Virginia, adultery requires actual intercourse. Generally, adultery involves an intentional sexual act by an individual with someone other than his spouse.
When you file for divorce on the ground of adultery, the laws in most states place the burden of proof on you to convince a court that it happened. Your evidence must be “clear and convincing,” less than a criminal court would require, but still substantial. Some states require that you actually produce a witness who observed your spouse and his paramour in a romantic situation. If you suspect your spouse of adultery, consult with an attorney to learn how strict your state is regarding your proof. You may have to hire a private investigator to take photographs, and you or your attorney would most likely have to gather other proof as well, such as cell phone records, email messages and credit card transactions. These things are all circumstantial evidence, and that’s OK, as long as you can show that your spouse both intended to cheat and had the opportunity to do so.
If you can prove to the court that your spouse committed adultery, some states will consider this when determining issues such as property distribution and alimony. Georgia and a few other states bar an adulterous spouse from receiving alimony, and most states with fault divorce grounds will not allow an under-earning spouse to suffer financially because her partner had an affair and ended their marriage. The District of Columbia and an additional 19 states will consider marital infidelity when dividing property, especially if your spouse squandered marital assets on his paramour.
If you file for divorce on grounds of adultery, your spouse has the right to contest it and prove you wrong. This can protract your divorce process and it may take considerably longer than it would have if you had filed on no-fault grounds. Some states, such as New Jersey, require that you name your spouse’s paramour in your divorce complaint and serve her with a copy, as well as your spouse. She becomes a party to your divorce action and she, too, can hire an attorney to fight it. Before you file on a ground of adultery, confer with an attorney to find out if it’s really in your best interest and if you have anything to gain by it.