When you file for divorce, you must allege at least one reason – or ground – for the divorce. All states recognize some form of no-fault ground, sometimes called “irretrievable breakdown of the marriage” or “irreconcilable differences.” Many states also recognize adultery or other grounds for divorce, but the definition of adultery varies among the states that recognize it.
The spouse who files for the divorce has the burden to prove to the court that grounds for divorce exist. If you allege adultery as the ground for the divorce, you must be able to prove the adultery occurred, and your testimony alone likely will not be enough. You may provide witnesses who saw your spouse in a romantic situation with the other person, or you could hire a private detective to investigate your spouse. Photographs or other documentary evidence may also be helpful. If you cannot provide sufficient evidence to prove the adultery, the court cannot grant your divorce based on that ground; you may be able to use your state’s no-fault grounds instead.
State laws also vary on the way adultery affects alimony. In some states, the adulterous spouse may be completely barred from receiving alimony if the adultery was the cause of the divorce, but some states do not have such laws. In those states, the spouse who committed adultery might be awarded alimony, depending on the circumstances. Also in some states, the adulterous spouse may end up paying more alimony than he otherwise would have, so long as the faithful spouse is otherwise entitled to alimony.
Proven adultery may affect the court’s division of marital property during the divorce. The faithful spouse may receive more of the couple’s assets or less of their debt if she can prove her spouse committed adultery and that his adultery caused the divorce. Adultery’s impact on property division during divorce varies by state and among judges.