Legal Basis for Dissolution of a Marriage
To file a divorce on the grounds of adultery, it must first be established that the misconduct of one spouse lies in adultery. In the absence of a no-fault divorce system, adultery is defined as consensual sexual relations with a person of the opposite or the same sex to whom they are not married and who is not included in the marriage as the chief element or a contributing element of the misconduct. The sexual relations of the parties must must be had voluntarily, knowingly, and with deliberate purpose; and the adulterous partner must be a married member of a different household or a non-married member of the same household. One may note that there is an issue of fact as to whether one or the other of the parties departed from normal standards of morality or sexual decency, but that is not a required element of adultery. Notwithstanding the admonition, in some states, that courts should not strictly construe statutes dealing with the grounds of divorce, courts will place additional safeguards on the definition by requiring proof of such things as personal sexual contact, pattern of behavior, and even injury to the innocent spouse from the adulterous conduct of the offending party. Some states will hold that the offense of adultery does not apply if there is no intention of infidelity and no known violation of confidential duties. In most no-fault jurisdictions, for purposes of dividing marital property and awarding spousal support, the guilty spouse will not be penalized for having committed adultery, although evidence of adultery may be considered . Where an action for divorce is based on adultery, some courts will hold that it is not sufficient to show that the accused spouse committed adultery with another person, or that the parties separated after learning of the affair, or that there was an opportunity for the accused spouse to commit adultery. However, many courts will consider fragments of such evidence to bolster the more convincing weight of direct evidence of adultery or collusion between the spouses. In almost all jurisdictions, adultery will not constitute a defense to an action for divorce. The fact that the innocent spouse committed adultery subsequent to the act of confession of the guilty spouse will not bar an action for divorce; nor will a later reconciliation or resumption of stress. Where a decree of divorce has been granted on the ground of adultery, the guilty spouse may not sue for alienation of affections against the other adulterer for certain subsistent costs, expenses, damages caused, and loss of consortium. The United States courts have adopted the English view that adultery by one spouse, without a possibility of reconciliation, is a ground for divorce. Generally speaking, adultery is not a bar to divorce actions because adultery of the one spouse is not usually a defense to an action for divorce commenced by the other spouse. Divorce on the ground of adultery has often been refused where the innocent spouse is shown to have forgiven the offense of adultery by consenting to a resumption of their relationship.
Collecting Concrete Proof of Infidelity
When pursuing a claim of adultery in a family court, it is vitally important to know what kind of evidence is admissible. While the list is not exhaustive, a few clear methods have emerged as effective for proving adultery and are therefore regularly accepted by family court judges: TEXT MESSAGES – These should be self-explanatory as a valid form of proof, but they should only be utilized if they help advance your claims. For example, if you have undeniable evidence of a romance, and that romance has not been sexual, it may not be enough to prove adultery. PHOTOGRAPHS – The obvious would be evidence of your spouse in a hotel with someone who is not you, but in reality, this kind of direct evidence is not as common as you might expect. In many cases, your attorney will suggest use of images obtained by cameras or phone video to prove that your spouse was at a certain location at a certain time. WITNESSES – Your ex’s old friends who no longer speak to him or your neighbors who’ve never even met him are not sufficient. Your witnesses should be people who legitimately had real access and involvement with your spouse and the defendant in question. Often, this will involve close friends who have firsthand knowledge of your husband’s activities.
The Utility of Private Sleuths
When the stakes are this high, the assistance of a private investigator may be useful. If a spouse or partner needs to prove cheating, he or she may want to hire a "private eye." Depending on the nature of the information requested, the investigator may be able to assist in gathering evidence as proof if cheating, especially if police do not normally have the time or interest enough to pursue on behalf of the individual. A private investigator may be able to follow someone, to gather photographic evidence and to develop information requested about where someone has been during a particular time. Information gatherers and investigators may be able to legally do many things to uncover the truth. However, they are restricted by law from following or surveilling people on protected property, such as on a business or in a residential neighborhood.
The Power of Digital Clues
The digital age has profoundly reshaped the ways in which we communicate. Social media, instant messaging, and emails have become cornerstones of our daily interactions. Unfortunately, these platforms are also a breeding ground for infidelity. When presenting evidence of adultery in court, more often than not, digital footprints are a game changer. From extraconjugal text messages to suspicious social media activity or even X-rated email exchanges, digital evidence is now the mainstay of infidelity cases. The question is: How far can this evidence take you in court? And does this mean that he hasn’t cheating on you?
Understandably, the legal system struggles with the idea of how much private information is at stake in gathering evidence of cheating. Meeting your spouse during a supposed work lunch, engaging in various forms of entertainment and rendezvousing under a smoke-scented pedestrian bridge are all things you previously would have had no wider knowledge of. But now, technology has a way of leaving permanent traces, and it isn’t difficult for anonymous sources to use these traces to blackmail an unfaithful spouse. This is why the legal system currently strikes a balance between an evolution of data types and legal compliance.
In most cases, gathering the digital evidence in support of an infidelity case must be done lawfully and within certain limits. Accessing someone’s social media profile without their knowledge is not always legal, and neither is tapping into their personal email account. Even so, if the evidence collected shows that your spouse is not being forthright, it can help you retain leverage in court.
Legality and Privacy Considerations
Before delving into specific tactics, it is important to understand the legal considerations and privacy concerns that come with collecting this type of information. While some states do not have laws that specifically address the issues of monitoring spouses or collecting intimate material from their cell phones or computers, there are some laws that are broadly worded that may be used to successfully challenge the collection of evidence. For example, the Federal Wiretap Act makes illegal any use of a phone or computer to intercept a conversation or even a call that your spouse is having or sending a text message or email. The exception to this law is if all parties consent to the recording or access of the communication. There are no laws that allow for any type of electronic surveillance of a person without that person’s knowledge or consent. As a result, secretly attaching spyware to a spouse’s computer or phone without his or her knowledge would violate this law and any information obtained through its use would likely not be admissible as evidence.
Moreover , many states have privacy laws that may also affect the ability to collect this type of information. For example, under the Federal Stored Communications Act and similar state laws, the federal law protects the electronic storage of voice messages, emails, and texts, which varies by state. Some of these state laws provide exceptions for shared accounts while other state laws do not. In addition, many state constitutions imply a right to privacy that may also limit the collection of information in this way.
Additionally, the types of evidence that may be admissible or excluded at trial vary from state to state, and your ability to collect certain types of evidence may depend on the state law where you are located. Despite the above, a growing body of case law has held that spouses do not have a reasonable expectation of privacy in electronically stored material on a smartphone or laptop because much of that information is shared and accessible to both parties, and thus discoverable and admissible in court.
Court Presentation of Evidence
In order for the court to consider your evidence of infidelity, you are required to both (1) submit evidence to the court via an evidentiary hearing; and (2) not violate any of the evidentiary rules that will bar your infidelity evidence. Thus, for example, a party to an equitable distribution claim must prove the amount of property subject to equitable distribution via admissible evidence. In addition, if a party wants a judge to observe the demeanor of a witness, then the judge must be present to hear the testimony of the witness. Thus, when presenting evidence at your hearing, the ascertainment of what type of evidence you need to present is important. If, as above, the court requires admissible evidence of the amount of property, then hearsay evidence, for example, which is barred by the rules, cannot be presented to the judge. Otherwise, such evidence could be bastardized and ultimately presented to the judge via direct testimony.
To prepare a case for presentation to the judge, a party should: (1) organize his or her evidence through means such as indexing, 3-ring binders, and/or tabbing; (2) determine which of his or her witnesses will likely testify and/or be called to offer evidence, but that he or she could not find prior to trial; and (3) prepare any photographs, models, diagrams, or illustrations illustrating the evidence he or she intends to present at the hearing. When making or preparing photographs, models, charts or diagrams, a party should attach any labels or other physical evidence to the party’s evidence for the judge and/or jury to see.
Importantly, if a party does not follow all of the suggested evidentiary rules, it is possible to have the entire claim of infidelity upended by a judge. In addition, if the party neglects to present his or her evidence to the court via heeding these rules, the party could find himself or herself with less access to what the judge deems essential evidence. Thus, the devil is in the details when it comes to offering infidelity evidence in court.
Consequences and Aftermath of Proving Infidelity
The legal and financial consequences of proving a spouse’s infidelity in divorce proceedings can be quite significant, depending on the laws of the individual state. Generally, states that allow for fault divorces permit the court to consider marital misconduct during the divorce process, while those that do not fault divorces do not make consideration of infidelity a fundamental part of the proceedings. In states that recognize fault divorces, evidence of infidelity could affect decisions about the division of property.
In states that have no-fault divorces, adultery or other misconduct irrelevant to the divorce are taken into consideration only when the parties wish to take advantage of the state’s adultery laws. The parties may have good reasons for not specifying their reason for wanting the divorce, including preserving their reputations, avoiding lengthy divorce process arguments or using other grounds on which the courts can only award limited remedies.
Alimony, also called maintenance or spousal support, is also a primary consideration in many divorces. In many states, infidelity will not have any effect on the amount or duration of the alimony award. However, in some states, if infidelity is the reason for the divorce, the adulterous spouse may receive less alimony or none at all . On the other hand, if the innocent party commits adultery, his or her alimony award may be reduced or eliminated altogether.
In some cases, parties who have cheated on their spouses may feel that they have hurt them irreparably. The thought that they may lose the opportunity to repair the relationship could lead them to try to prove a spouse’s infidelity in order to avoid guilt. Additionally, if the cheating party received an inheritance or some other unexpected income during the marriage, he or she might become concerned that the innocent party could receive more than his or her equitable share and therefore seek to prove infidelity, hoping that the court would make a different property division ruling.
Some couples may choose to forgive cheating on the part of one or both spouses. This is especially likely if the couple has children who are young and still need support and nurturance. The decision to maintain the marriage may also be based on the understanding that either spouse may cheat again if that is what he or she wants. In these cases, the parties may use the marriage as a way to avoid property division and other consequences of divorce and still have the option of dissolving the marriage at any time.
