Does Adultery Justify Divorce?

By Mary Jane Freeman

Not only does infidelity lead to discord in a marriage, it often causes spouses to call it quits. If your spouse cheated on you and you're filing for divorce, you may want to list adultery as the reason your marriage came to an end. However, not all states give you this option. While all states permit spouses to file for divorce on no-fault grounds, meaning a spouse does not have to prove misconduct on the part of the other to get a divorce, only some states recognize adultery as grounds for divorce.

Not only does infidelity lead to discord in a marriage, it often causes spouses to call it quits. If your spouse cheated on you and you're filing for divorce, you may want to list adultery as the reason your marriage came to an end. However, not all states give you this option. While all states permit spouses to file for divorce on no-fault grounds, meaning a spouse does not have to prove misconduct on the part of the other to get a divorce, only some states recognize adultery as grounds for divorce.

Adultery

Although some states recognize adultery in addition to no-fault as grounds for divorce, it is less commonly used. The reason is that allegations alone are not enough for a court to find your spouse cheated on you. You must prove he or she had sexual intercourse with another person outside of the marriage. To do this, courts expect such evidence as photographs or testimony from someone who witnessed your husband or wife and the other party in the act. Furthermore, states that recognize adultery will typically bar divorce on adultery grounds if your spouse can prove you knew of his indiscretions, forgave his infidelity or continued having sex with him after learning of his cheating ways.

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No-Fault Option

If your state permits divorce based on adultery, but you've decided that actually proving your spouse cheated is too great a hurdle to overcome, you still have the option of filing for divorce on no-fault grounds. Depending on your state, no-fault typically means "irreconcilable differences" or "irretrievable breakdown of the marriage." In other words, your marriage is ending, but no one is at fault. To file for divorce on this ground, states usually only require proof of residency and, in some cases, living separate and apart from your spouse for a specified period of time. Some states are pure no-fault states, meaning you can file for divorce only on no-fault grounds. If you reside in such a state, you can't cite adultery or any other fault grounds for divorce, even if you can prove it.

Child Custody & Visitation

If you successfully prove adultery, this may affect the terms of your divorce. In the case of children, courts rarely consider a spouse's extramarital affair when determining custody. Instead, the court focuses on what custody and visitation arrangement would be in the best interests of the children. However, a court may take your spouse's infidelity into account if he or she brought the other party around your children or they otherwise knew of the indiscretions.

Alimony & Property Division

Unlike with child custody and visitation, a court is more likely to consider your spouse's infidelity when dividing marital property and determining alimony, also known as spousal support. For example, if your husband lavished his mistress with money and gifts using marital funds, money earned during the marriage, the court may award you property above what you would've otherwise received to compensate you for this loss. Additionally, a court may award you alimony, or a greater amount in alimony, as a result of your spouse's wrongdoing. However, if you are the one who cheated, a court may bar you from receiving it altogether.

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What Happens in a Divorce if the Husband Has Cheated in Illinois?

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What Can You Cite in a Divorce Besides Irreconcilable Differences?

Before a court will grant you a divorce, you've got to present a valid reason why your marriage should end. This reason is considered your "grounds" for divorce. All states recognize some version of no-fault grounds for divorce, too. In these instances, you do not have to blame your spouse for wrongdoing in order to terminate your marriage. Irreconcilable differences is a common no-fault ground, but it’s not available in all states so you may have to cite something else instead. The majority of states offer fault grounds for divorce while the remaining states and the District of Columbia are "pure" no-fault jurisdictions.

Guide to Fault Divorce in Massachusetts

Before a Massachusetts court can grant your divorce petition, it must have a reason for the divorce, called grounds. Massachusetts allows both fault-based and no-fault grounds, and the grounds you choose will vary depending on your circumstances and whether you have enough evidence to prove your spouse is at fault for the breakdown of your marriage.

Tennessee Divorce Laws on Adultery

You don’t have to prove marital misconduct to receive a divorce in Tennessee; the state offers the no-fault ground of irreconcilable differences. However, its statutes require that you and your spouse live apart for two years before you qualify for a no-fault divorce. Fault grounds don’t share the same restriction, which can make them an attractive option if your spouse has done something to end the marriage, such as committing adultery.

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