Can You Be Charged With Adultery After You File for Divorce?

By Beverly Bird

If you or your spouse has filed for divorce and you're just counting down the days until the whole ordeal is behind you, keep in mind that you're not officially free until the ink dries on your judgment or decree. Until the court actually issues an order ending your marriage, you're still married. If you begin a romantic relationship with anyone other than your spouse during this time, it's adultery.

If you or your spouse has filed for divorce and you're just counting down the days until the whole ordeal is behind you, keep in mind that you're not officially free until the ink dries on your judgment or decree. Until the court actually issues an order ending your marriage, you're still married. If you begin a romantic relationship with anyone other than your spouse during this time, it's adultery.

Amended Pleadings

If you find out that your spouse has begun an affair after you already filed for divorce, you can often amend your petition or complaint to include grounds of adultery. Likewise, if your spouse filed for divorce, you can amend your answering pleadings to include these grounds. If you live in one of the 19 states that does not recognize fault grounds, however, you don't have this option. Adultery is largely a moot point in these jurisdictions – you can't allege any form of marital misconduct as grounds for divorce.

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Effect on Divorce

Although you can't cite fault grounds in your petition in pure no-fault states, some of these jurisdictions will consider marital misconduct when dividing marital property. For example, in California – which does not recognize fault grounds – you may be entitled to additional marital property if you can prove that your spouse began the affair before you separated and he wasted marital assets on his paramour. This also applies in fault-based divorce states. For example, in Tennessee, a court can consider adultery when dividing property and also when determining whether to order alimony.

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Fault Vs. Non-fault Divorce

References

Related articles

Is Adultery a Major Consideration in a Divorce in VA?

Some states are rather forgiving when it comes to divorce and adultery. These are typically the pure no-fault states that don't recognize any form of marital misconduct as grounds. However, Virginia isn't a pure no-fault state, and its laws regarding adultery might have a significant effect on your divorce.

New York Laws on a Divorce Adultery Countersuit

New York has recognized no-fault grounds for divorce since 2010, but this doesn’t prevent a spouse from filing on fault grounds instead. A spouse can file on grounds that her partner committed adultery, but the state doesn’t make this particularly easy. As a holdover from the days when spouses had to prove misconduct to receive a divorce, New York’s laws require somewhat stringent proof of adultery, whether you allege it in a complaint or in a countersuit.

What If You Don't Admit to Adultery in a Divorce Case?

Deciding whether to admit to adultery during divorce proceedings is a personal decision, and one that ultimately, will not affect your ability to get a divorce. On the one hand, if you admit to adultery, you may speed up the divorce process, and you won't have to defend suspicious text messages or emails in court. On the other hand, state laws may favor the innocent spouse when it comes to the divorce settlement – meaning, that you may lose out on alimony or marital property, if you admit to having an affair.

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