Does Adultery Justify Divorce?

by Mary Jane Freeman Google
Not all states recognize adultery as grounds for divorce.

Not all states recognize adultery as grounds for divorce.

David De Lossy/Photodisc/Getty Images

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.

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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.

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.