To get a divorce you must have a reason. Some reasons for divorce don't require proof that your spouse was at fault. Other reasons, such as adultery, do require proof of fault. In most states, you may choose to have either a no-fault or a fault-based divorce. In some states, you can only get a no-fault divorce.
Adultery is often defined as voluntary sexual intercourse by a married person with someone besides his or her spouse. While intercourse is usually required, something less may amount to adultery under the divorce laws in some states. Adultery is stated as a reason for divorce in the laws of the majority of states that allow fault-based divorces.
Choosing Between No-Fault and Fault-Based Divorce
A spouse may choose a fault-based reason for divorce even when no-fault divorce is an option. Often no-fault divorce laws require the couple to be separated for a longer time period than when a fault-based reason is given for seeking a divorce. In some states, a spouse who proves the other's fault may receive a greater share of the marital property or more alimony. Marital property is property that both spouses have rights to.
Proof of Adultery
You must have proof to get a divorce based on adultery. A feeling or a belief that your spouse committed adultery isn't enough proof. Adultery can be difficult to prove and requires supporting evidence from an additional person. It's usually not enough for both spouses to admit that one committed adultery. Adultery must be independently proven as fact.
Usually there's no direct proof of adultery, such as eyewitness accounts or photographs, so adultery has to be proven with circumstantial evidence. Circumstantial evidence is indirect evidence based on implications. Adultery may be proven indirectly by showing an opportunity, such as the spouse was in the company of someone else where sexual intercourse could have occurred, and an inclination to commit adultery, such as the spouse and other person were likely to participate in sexual relations under the given circumstances.
To prove adultery, you either need an eyewitness, which is very unlikely, or circumstantial evidence that logically leads to the conclusion of adultery and is inconsistent with the normal behavior you would expect from an innocent spouse. To prove adultery using circumstantial evidence, you would need to show both an inclination and the chance to commit adultery. Proof that two people are inclined to commit adultery may consist of such things as their public displays of affection or their love letters. Proof of opportunity may consist of travel or hotel records.
If your spouse has found someone else and you think the marriage is over, you may want to consult a divorce attorney before you confront your spouse. Your lawyer can advise you on what you should do to get the evidence of adultery that you may need if you decide to file for divorce based on the grounds of adultery.
