Adultery and Divorce

Jodee Redmond
Laws regarding adultery and divorce can vary.

The law with respect to adultery and divorce varies by state. The legal definition of adultery is "consensual sexual relations when one of the parties is married to another person." It is still grounds for divorce in a number of states; in so-called "no-fault states," the fact that the marriage has broken down is considered grounds for divorce. Even in some no-fault states, a person asking the Court to grant a divorce has the option of using adultery as the legal reason for ending the marriage.

Proof of Adultery

In past years, when thoughts about adultery and divorce were different, one spouse would have to prove that the other one had been unfaithful. Some people would hire a private investigator to gather evidence of infidelity. It wasn't likely that the investigator would be able to obtain photographs of the adulterous couple having sex. Instead, the investigator would attempt to gather evidence that the two had the opportunity to be intimate.

Seeing the pair enter a motel room together and then re-appear some time later would have been considered proof of adultery in a number of states. If one or both of the parties confessed to the adulterous relationship, the confession could be entered into evidence.

Adultery as a Crime

Adultery is still considered a crime in a number of states, although the law is seldom enforced in the United States. Occasionally, a couple is arrested and charged with committing adultery. In other countries, however, a person convicted of having committed adultery can be imprisoned, flogged, or put to death.

Adultery in the Military

Members of the U.S. military who commit adultery can be charged with a court-martial offense. Adultery is prosecuted under the provisions of Article 134 of the Uniform Code of Military Justice (UCMJ). In order for the person who committed adultery to be prosecuted, three elements must be proven:

  1. The accused had sexual intercourse with a particular individual;
  2. At the time of the sexual encounter, the accused was lawfully married to another person; and
  3. The accused's actions brought discredit to the armed forces or threatened the "good order and discipline" of the armed forces.

If convicted, a serving member of the armed forces can be imprisoned for one year and dishonorably discharged. All pay and allowances will be forfeited.

Information About Adultery and Divorce

If a married person commits adultery and is caught, the so-called "innocent" spouse will be angry and hurt. In a divorce proceeding, the injured party is less likely to be reasonable and co-operative when resolving issues relating to division of marital property, custody, and maintenance.

Those people who are truly unhappy in their marriage and thinking about starting a new relationship would be well advised (if at all possible) to end the marriage first and then start seeing someone else.

Custody of Children

If person is separated from his or her spouse, and moves in with a new partner, does that affect their chances of getting or retaining custody of their child or children? In custody matters, judges in most states still determine custody of minor children based on what they perceive as being in the best interests of the child. When making this determination, the judge will consider the child's home environment. This evaluation will include what sort of relationship the child has with his or her parent's new partner.

Adultery and Maintenance

In some states, whether or not one spouse was unfaithful does have an effect on the amount of spousal maintenance that is ordered. It may also be considered when a ruling is made regarding marital property. In other states, whether adultery is being given as grounds for divorce is not given any weight by the Court. For the rules of the state where you live, please consult an attorney to get the appropriate legal advice for your particular situation.

Adultery and Divorce