I suspect adultery. What do I do?

Posted on Dec 17, 2021 by Katie Carter


It’s never easy to find out – or suspect – that your husband is cheating on you with someone else. If you’ve come to that conclusion, let me say first that I am so sorry that you’ve found yourself here. I know that it’s a harrowing experience and that it’s difficult to know what to do or where to turn.

Should I confront him about the affair or should I speak to a lawyer first?

If you suspect adultery and you haven’t said a word to him about it yet, well, frankly, I don’t know how you do it! But I get this question a lot so I know that a lot of women, on top of being heartbroken, are already trying to think strategically.

That’s so important, and I can’t tell you enough how smart that is. After all, whether he is or whether he isn’t – whether you save your marriage or end it – you need to be thinking carefully about your future and what you want out of it. It’s not going to help to be an ostrich burying your face in the sand and just hoping things work out. You’ll want to do the legwork now to make sure you’re as educated as possible, to make sure that the decisions you’re making now are good, solid decisions designed to put you in a strong place later, and that you’re in touch with your own goals and priorities over the long term.

If you haven’t spoken to him yet, you’re superwoman. If you have, and it was a nasty confrontation, it’s still fine. Either way, it’s probably not going to be that big of a deal. Let’s talk about adultery a little bit, why it matters, and what your options are.

Why does adultery matter?

So, starting with the basics. Adultery is when a married person has sex with someone – oral, anal, or vaginal sex, so sorry to get graphic – who is not their spouse.

Why does it matter? Well, it’s against the law, for one thing. Adultery is a misdemeanor, and it’s rarely prosecuted, but it’s still against the law.
It’s also fault based grounds for divorce. So, once you know that adultery has occurred (or, at least, you have a reasonable belief) you have enough basis to file for divorce using adultery as your grounds. You’ll have to prove it, later, at trial, if it comes to that, by clear and convincing evidence.

It’s not easy to prove adultery. In fact, of the fault based grounds, adultery is the most difficult to prove, because it also carries with it potential criminal consequences.

I want that – I want to use adultery as my grounds for divorce.

Hold your horses! It is pretty typical for someone who has been cheated on to want to use adultery for their grounds of divorce, and it makes sense. It’s a justification for the divorce itself, there’s a basis under the law to support a divorce on those grounds, and that makes it feel nicer.

I always think that it’s a good idea to ask yourself what you’ll gain from a particular course of action, though. In general, litigated, fault based divorces (like divorces where adultery is used as grounds for divorce) are far more expensive than uncontested once.

In general, too, it doesn’t make that big of a difference (if it makes any difference at all) to equitable distribution.

If you’re going to pay extra, if it’s going to take longer, if it’s going to be more difficult, you want to know that it’ll ultimately yield better results for you, right?

It’s probably smart to talk to an attorney, sooner rather than later. Definitely don’t go out and hire a private investigator or do anything crazy before you talk to an attorney. But that doesn’t mean you have to talk to someone before you confront your husband. What could you gain by talking to the attorney first? Well, it might give you an opportunity to hire a private investigator or take other steps to make sure that you have the evidence you need – but that’s assuming that you’d want to do that, anyway.

Talk to an attorney. Get a sense of your rights under the law – but be prepared to have the conversation that his adultery won’t mean as much as you think it does. It’s not a golden ticket, and it doesn’t mean that you get any extra portion of the assets or any additional support just because he committed adultery.
Does it matter at all that he committed adultery? What’s the point of filing for divorce if it doesn’t even matter?

There’s one big way adultery matters, and that’s in spousal support. If you’ve committed adultery, you can’t then ask for spousal support from the innocent spouse. That’s assuming that you’d be entitled to support under the law, but still – it’s a biggie.

There are still reasons you might file for divorce anyway, though. Whether adultery matters in equitable distribution or not, filing for divorce gives you quick access to the courts and an opportunity to schedule a pendente lite hearing. It can show your husband that you’re serious, too. Keep in mind that just because you file for divorce on fault doesn’t mean that you have to go all the way through to a trial, either; at any point you can switch over from a litigated divorce to a negotiated one and, ultimately, to an uncontested divorce.

Adultery isn’t a golden ticket. Even though it entitles you to an immediate divorce, that’s also something that’s more of a pipe dream than a reality. Ultimately, using adultery means that your divorce will take longer, cost more, and – if you litigate all the way up to and through a trial – it’ll probably also yield poorer results.

For more information or to schedule a consultation, give our office a call at 757-425-5200.