When your spouse strays, your first instinct might be to seek revenge. You might be able to accuse her of adultery in your divorce complaint and let the world know she ended your marriage. Maybe the judge will agree that she's a despicable character and award you additional marital property or give you custody of your children. If you live in Maine, you'd be half right. You can file for divorce on grounds of adultery in this state, but it probably won't affect issues of property division or custody.
Fault Vs. No-Fault Grounds
Maine recognizes nine grounds for divorce. Adultery is one of the fault grounds, and irreconcilable differences is the no-fault grounds. Most Maine divorces use grounds of irreconcilable differences. If you do this, the court can give you a divorce without requiring you to prove your spouse did anything wrong. If your spouse disputes your marriage is over, however, the judge might order the two of you to attend counseling before granting you a divorce. If you and your spouse can reach an agreement on issues of custody, support and property, you can be divorced on the basis of irreconcilable differences in a relatively short period of time. If you have to go to trial to litigate grounds and other issues, your divorce could take more than a year.
If you file for divorce on grounds of adultery, you'll have to prove at the time of trial that adultery occurred. It's not sufficient to merely accuse your spouse. Generally, you need some sort of corroborating evidence, such as photographs, correspondence or eyewitness testimony. If a Maine judge doesn't believe you've met this burden of proof, he can deny you a divorce.
If your spouse wants to contest your grounds, she can can present affirmative defenses at trial. In Maine, defenses against adultery include recrimination and condonation. If she alleges recrimination, she's accusing you of having an adulterous affair as well, which might absolve her of blame. If she accuses you of condonation, it means you forgave her for her transgression by continuing with the marital relationship after you found out about it. The judge won't take these defenses at face value; your spouse will have to prove them just as you have to prove your adultery grounds. If each of you is trying to prove the guilt of the other, the matter can drag out and become a lengthy divorce trial.
Effect on Divorce
If you're contemplating filing on grounds of adultery, confer with a divorce attorney to find out if there's any advantage for you. The Maine statutes do not allow judges to consider marital misconduct, such as adultery, when dividing property in a divorce. Custody decisions are based on the best interests of your children, and marital misconduct that doesn't affect them won't have any impact on a judge's custody decision either. If you can prove adultery, it might have an effect on alimony, but only if you can establish your spouse wasted assets on her paramour, for example, by buying him lavish gifts with marital money.
References & Resources
- Shankman & Associates: Divorce
- Irwin, Tardy & Morris: Divorce FAQ
- Henry W. Griffin: Divorce
- Maine State Legislature: Maine Revised Statutes – Section 902 Grounds; Defenses
- The Free Dictionary: Recrimination
- The Free Dictionary: Condonation
- Charles, Rundkett, Fifield, Shumway & Altshuler: Family Law Overview