Difficulties Of Using Adultery As A Divorce Ground

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Difficulties Of Using Adultery As A Divorce Ground

23 August 2017
 Categories: Law, Blog


Getting cheated on can elicit mixed feelings such as frustration, anger, and hurt. This is why many people who have been cheated on wish to use adultery as a ground for divorce. Unfortunately, using adultery as a ground for divorce isn't always a good idea; here is why:

Proving Adultery Is Difficult 

Knowing that your partner cheated on you is one thing; being able to prove it in a divorce court is another. In fact, proving adultery is notoriously difficult. The best form of adultery evidence is direct evidence, which includes different things such as eyewitness testimony, actual pictures, or video footage of the alleged act. The next best form of evidence is indirect evidence, such as romantic communication between your partner and the other party.

As you can imagine, it is difficult to get into a position where you can take a picture or record a video of your partner cheating on you. It isn't even advisable to do that because of the confrontations that may arise with your partner or with the other party. You may even end up with illegally obtained evidence that might be useless in court.

The Condonation Defense

Even if you do get proof of adultery, there is a good chance your spouse may be able to come up with a good defense.  A typical defense that usually works is condonation or forgiveness. This is what your spouse will use if they believe or want the court to believe that you knew of their adulterous act and forgave them.

This defense usually succeeds because the forgiveness doesn't have to be verbal (meaning you don't have to say "I forgive you"); acting in a manner to suggest that you have forgiven your spouse is enough. For example, going to counseling with the cheating spouse or waiting too long before filing for divorce are typical deeds that can be interpreted as condonation.

Using Adultery As a Divorce Ground Isn't Necessarily Beneficial

Many of those who have been cheated on think that they will automatically get custody of their kids, receive higher alimony, or get a bigger share of their marital assets during property division. In fact, this is one of the things that drive people to cite adultery as their ground for divorce.

Unfortunately, the reality is a little different, and the benefit isn't automatic. For example, most courts will only increase your share of your assets during division if you can prove that the adultery had an economic impact on your marital assets. In the same vein, your cheating spouse will only lose custody of the kids if it is proven that the cheating will have an adverse effect on their ability to raise the kids. It is only on the issue of spousal support where it may be beneficial to use adultery as a divorce ground; many courts do not award spousal support to cheating spouses.

For additional information, contact a separation and divorce attorney.