Definition of Adultery Pertaining to Divorce

by Beverly Bird
Adultery charges hinge on a spouse having both the inclination and opportunity to stray.

Adultery charges hinge on a spouse having both the inclination and opportunity to stray.

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Sometimes, the meaning of a word is much more complex when it's used in the context of law. Most people know what adultery is – a spouse has had sexual relations with someone other than the person he's married to. When it pertains to divorce, however, there may be other nuances that can vary from state to state.

Is It Adultery if You Don't Actually Have Sex?

Technically, sexual intercourse is required in most states to substantiate a charge of adultery. But some state's legislative codes are vague, such as South Carolina's. You may be charged with adultery in divorce court even if all you did was hold hands with your paramour in a public restaurant. The hand-holding can provide proof that you had the inclination to stray, which can be pivotal to divorce proceedings. If you've never laid a hand on the individual your spouse thinks you committed adultery with, you're probably safe because emotional affairs usually don't count.

Proof Is Required

Most state courts do not require that your spouse produce visual evidence or hard proof to support an adultery claim. Circumstantial evidence is the norm and it focuses on two issues – whether you had opportunity and if you were inclined to have an affair. Your spouse might be able to prove your inclination through emails, text messages or even photographs. Opportunity presents more of a legal hurdle. Your spouse would have to establish that you were alone with your paramour for a sufficient period of time to have engaged in sexual relations.