Adultery Divorce Laws

By Beverly Bird

In 2010, New York became the last state in the country to adopt no-fault divorce. No matter where you live, you no longer have to prove fault, such as adultery, to get a divorce. In 17 states, you don’t even have a choice: You can file only on no-fault grounds. In these jurisdictions, your spouse may be guilty of infidelity, but the courts don’t care. Most other states, however, consider adultery a ground for divorce.

Legal Definition

The precise definition of adultery varies among the states that consider it a fault ground. In New Jersey, the law doesn’t specify what intimate acts constitute adultery, only that a spouse must stray with the intention of “rejecting” the other. In Virginia, adultery requires actual intercourse. Generally, adultery involves an intentional sexual act by an individual with someone other than his spouse.

Proof

When you file for divorce on the ground of adultery, the laws in most states place the burden of proof on you to convince a court that it happened. Your evidence must be “clear and convincing,” less than a criminal court would require, but still substantial. Some states require that you actually produce a witness who observed your spouse and his paramour in a romantic situation. If you suspect your spouse of adultery, consult with an attorney to learn how strict your state is regarding your proof. You may have to hire a private investigator to take photographs, and you or your attorney would most likely have to gather other proof as well, such as cell phone records, email messages and credit card transactions. These things are all circumstantial evidence, and that’s OK, as long as you can show that your spouse both intended to cheat and had the opportunity to do so.

Divorce is never easy, but we can help. Learn More

Repercussions

If you can prove to the court that your spouse committed adultery, some states will consider this when determining issues such as property distribution and alimony. Georgia and a few other states bar an adulterous spouse from receiving alimony, and most states with fault divorce grounds will not allow an under-earning spouse to suffer financially because her partner had an affair and ended their marriage. The District of Columbia and an additional 19 states will consider marital infidelity when dividing property, especially if your spouse squandered marital assets on his paramour.

Other Considerations

If you file for divorce on grounds of adultery, your spouse has the right to contest it and prove you wrong. This can protract your divorce process and it may take considerably longer than it would have if you had filed on no-fault grounds. Some states, such as New Jersey, require that you name your spouse’s paramour in your divorce complaint and serve her with a copy, as well as your spouse. She becomes a party to your divorce action and she, too, can hire an attorney to fight it. Before you file on a ground of adultery, confer with an attorney to find out if it’s really in your best interest and if you have anything to gain by it.

Divorce is never easy, but we can help. Learn More
Adultery & Divorce in Georgia

References

Related articles

New York State Divorce Laws When a Spouse Has an Affair

Until 1967, adultery was the only grounds for divorce recognized by New York. The state’s code defines it as sexual intercourse between an individual and someone other than her spouse after their date of marriage, so an affair qualifies if the relationship was sexually consummated. However, the rest of New York’s laws pertaining to this divorce ground are not quite as simple.

How Soon Can I Get a Divorce Based on Verbal Abuse?

As of 2010, all states recognize no-fault divorce, but the majority allow spouses to file on fault grounds as well. However, as divorce laws move into the 21st century, more and more states are eliminating fault-based divorce grounds from their statutes entirely. Most states that recognize fault-based divorce provide a ground that would address abuse. However, if time is your concern, you can usually get a no-fault divorce more quickly.

Divorce Based on Adultery in Illinois

If your spouse has strayed, you might have good reasons for wanting to file for divorce on grounds of adultery -- but doing so might not result in more than some personal satisfaction. Illinois recognizes adultery as divorce grounds, but you could probably end your marriage much more quickly and economically if you filed on the state's no-fault grounds of irreconcilable differences instead.

Get Divorced Online

Related articles

How Long Does It Take to Get a Divorce for Adultery in New York?

In New York, just as in other states, the time required to get a divorce depends much more on whether you and your ...

Adultery & Divorce in Maine

When your spouse strays, your first instinct might be to seek revenge. You might be able to accuse her of adultery in ...

Causes of Divorce: Habitual Drunkenness

In 2010, New York became the last jurisdiction to pass provisions for no-fault divorce, so all 50 states have now moved ...

Adultery & Legal Rights

Adultery is considered a crime in some states, although spouses typically don't go to jail over it. If you or your ...

Browse by category
Ready to Begin? GET STARTED