Cheating and Divorce: What you should know about adultery

In divorces where adultery is an issue, emotions run particularly high. Since most of us feel like cheating is the ultimate emotional betrayal, we also tend to feel like there should be some sort of punishment for that behavior. After all, in the olden days, it used to be that adultery was pretty much the ONLY conceivable reason for divorce, and the feeling that adultery is on a whole different level from any other reason a marriage might end is one that prevails even today.

All hurt feelings aside, it is important that you are able to carefully, logically, and reasonably analyze the choices presented to you when it comes to your divorce. Ultimately, you have responsibility for ensuring that the choices you make protect you in the long run by helping you preserve as much of the marital assets as possible, avoid as much of the marital liabilities as possible, and ensure that you have a chance at the best, freshest brand new start possible.

What is adultery?

Adultery is when a person who is married has sex with a person who is not his spouse. Notice that I said “sex.” Sex is a very specific set of acts, but as far as the law is concerned, it includes oral, anal, or vaginal intercourse. Sex does not include hand holding, kissing, love notes, going out in public together, or referring to yourself as boyfriend and girlfriend. It’s very specific. You must have some form of sexual intercourse to be guilty of adultery.

How do I prove adultery?

Adultery isn’t something that you can just say happened; you’ll have to actually prove it. Even if he has admitted to you that he has committed adultery, you’ll have to go to court and offer evidence in front of a judge.

If your husband has admitted to the adultery, or you have pictures, text messages, Facebook statuses, or other information, that’s a good start. Still, it won’t be enough to PROVE to the judge that the adultery occurred. You’ll need corroborating evidence from a third party. That’s a hard thing to have, because, normally, when people commit adultery, they don’t do so around other people.

Most of the time, we prove adultery by using a private investigator. Before you hire a private investigator to catch your cheating husband, though, you should read the next section and meet with an attorney to determine your case strategy.

What benefit is there to alleging adultery, if I can prove it?

In most cases, there is very little benefit to providing adultery, especially compared to the expense generated by pursuing a fault-based case. The judge CAN consider one party’s fault as a reason for awarding more or less of the marital assets to the other party, but this rarely happens.

Still, it’s a good idea to take your case to an attorney and discuss it calmly and rationally. That’s a difficult thing to do when adultery is at issue, but remember that you’ll need to make big, important decisions early on in your case. You definitely don’t want to end up spending more money than you need to on attorney’s fees to fight over something that ultimately won’t mean that you get a larger share of the marital funds.

Remember: the judge isn’t there to punish your husband, or tell him he’s been a bad, bad man. You’re hurting, and it’s hard to think of anything else. Divorce is incredibly difficult. The best thing you can do is go into your consultation with an open mind, and make the mature decisions you need to make to save as much money as possible, so that you’ll have it available AFTER your divorce.

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