Adultery, or having an extramarital affair, can often be grounds for divorce. However, the legal requirements for proving adultery and using it as a justification for divorce vary by state and situation. This article will examine whether adultery allows a woman to divorce her husband.
Quick Answer
In most states, if a husband commits adultery, his wife can use that as grounds to file for divorce. However, she typically needs to provide evidence to prove the adultery occurred. The extent of evidence required depends on each state’s laws.
Adultery as Grounds for Divorce
In the United States, each state has its own laws regarding divorce. Most states recognize adultery as grounds for divorce. However, the legal requirements to prove adultery vary widely.
Some states, such as New York, have “no fault” divorce laws. This means adultery does not need to be proven as grounds for divorce. The state allows spouses to divorce if the marriage is irretrievably broken for at least 6 months.
Other states require proof or evidence of adultery. For example, South Carolina allows divorce on the grounds of adultery if evidence is presented showing adultery occurred. The evidence does not need to be concrete proof of the act itself but can include:
- Testimony about the adulterous spouse’s opportunity, inclination, and acts suggesting adultery
- Evidence of the spouses living separately
- The adulterous spouse’s admission of adultery
States like Arkansas, on the other hand, have stricter requirements. The spouse filing for divorce must provide eye-witness testimony of the adulterous act itself. Circumstantial evidence is not sufficient.
How Adultery Is Defined
The legal definition of adultery also varies by state law. In some states, adultery is defined as intimate sexual contact between a married person and someone other than his/her spouse.
Other states may define it more narrowly as penile-vaginal penetration between a married individual and someone other than his/her spouse. Some states even specify that adultery requires the extramarital partner to be of the opposite sex.
Additionally, emotional infidelity does not equate to legal adultery in and of itself. An emotional affair, online romantic relationship, or other deep emotional connection outside marriage does not meet the legal standards for adultery in most states.
When Proof of Adultery Is Not Required
As mentioned, some states have “no fault” divorce laws where proof of wrongdoing like adultery is not required. The following states offer no fault divorce:
- Alaska
- Arizona
- California
- Colorado
- Connecticut
- Delaware
- Florida
- Hawaii
- Indiana
- Iowa
- Kentucky
- Michigan
- Minnesota
- Missouri
- Montana
- Nebraska
- Nevada
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- South Dakota
- Texas
- Utah
- Virginia
- Washington
- Wisconsin
- Wyoming
In these states, a woman can file for divorce on the grounds of irreconcilable differences or an irreparable breakdown of the marriage. She does not need to provide proof of adultery or other wrongdoing by her spouse.
When Adultery Proof Is Required
In the following states, proof of adultery is required if using adultery as the grounds for divorce:
- Alabama
- Arkansas
- DC
- Georgia
- Idaho
- Illinois
- Kansas
- Louisiana
- Maryland
- Massachusetts
- Mississippi
- New Hampshire
- New Jersey
- Pennsylvania
- Rhode Island
- South Carolina
- Tennessee
- Vermont
- West Virginia
The extent and type of evidence required varies among these states, as discussed earlier.
Using Adultery in Divorce Proceedings
Even in states where definitive proof is required, successfully proving adultery in court can be challenging. Here are some tips for using adultery in divorce proceedings:
- Hire a private investigator to gather evidence discretely over time.
- Obtain incriminating photos, texts, emails, or other electronic proof.
- Have eyewitnesses like hotel staff testify.
- Subpoena the suspected lover and get his/her testimony.
- Access phone and credit card records.
- Use DNA tests if a child is involved.
- Get an admission of guilt from the adulterous spouse.
However, it is illegal in most states to record someone without consent or illegally access private data. Any evidence obtained unlawfully may be inadmissible in court.
Impact on Divorce Settlement
Even in no fault divorce states, proving adultery can still impact the divorce settlement. Adultery usually has the following consequences:
- The adulterous spouse may be barred from getting alimony.
- The division of marital property and assets may favor the innocent spouse.
- The innocent spouse may get majority child custody.
- The adulterous spouse may have to pay extra spousal support.
However, the court does not always penalize the adulterous spouse in these ways. The division of assets is at the court’s discretion based on what is equitable and in any children’s best interest.
Alternatives to Using Adultery as Grounds
Rather than proving adultery, the woman has other alternatives for filing for divorce. These include:
- Citing irreconcilable differences if residing in a no fault divorce state
- Claiming the husband abandoned her
- Alleging unreasonable behavior that destroyed the marriage
- Presenting evidence of domestic violence or abuse
- Establishing the marriage lasted less than six months
Using one of these grounds may be easier than proving adultery in some cases. A woman should consult with a divorce lawyer to determine the best approach under her state’s laws.
Divorce on Grounds of Adultery
| State | Adultery Defined As | Proof Needed |
|---|---|---|
| Alabama | Sexual intercourse between a married person and someone who is not his/her spouse | Circumstantial evidence sufficient |
| Alaska | No fault state | No proof required |
| Arizona | No fault state | No proof required |
| Arkansas | Sexual intercourse between a married person and someone who is not his/her spouse | Direct eye-witness evidence required |
| California | No fault state | No proof required |
Consulting a Divorce Lawyer
Since adultery divorce laws vary so much by state, it is essential for a woman to consult with a local divorce attorney to understand her rights. A lawyer can analyze the evidence she has and the laws in her jurisdiction to determine the feasibility of filing for divorce on adultery grounds.
In states requiring strong proof, a lawyer can also discuss whether trying to obtain more evidence covertly would be legal and prudent. Alternatively, the lawyer can explain the other potential grounds for divorce if proving adultery is challenging.
With an attorney’s guidance, a woman can make an informed decision about how to proceed with divorce due to her husband’s unfaithfulness. She will better understand how to file in compliance with local laws and in a strategic manner.
Conclusion
In most states, adultery does provide legal grounds for a woman to divorce her husband. However, the requirements to prove adultery vary significantly across states. Some states permit divorce without any proof of wrongdoing. Others require eyewitness testimony or strong circumstantial evidence to prove adultery occurred.
Even when proof is not required, adultery may still impact divorce settlements regarding property division, alimony, and child custody. Consulting a local divorce lawyer allows a woman to understand her rights and the evidence needed to file for divorce based on her husband’s adultery.
