Can You Use Evidence of Cheating in a Fault-Based Divorce?

Can You Use Evidence of Cheating in a Fault-Based Divorce?

Finding out your spouse has cheated can be absolutely devastating. It can make you question everything about your relationship and marriage. You may feel angry, hurt, betrayed – and want to make sure your cheating spouse doesn’t get away with it. But can you actually use evidence of infidelity in a divorce case?

The answer depends a lot on where you live and the divorce laws in your state. Some states have “no-fault” divorce, meaning you don’t have to prove fault or blame on either side to get divorced. But other states do allow for “fault-based” or “fault” divorce, where you can cite reasons like adultery as grounds for divorce. Here’s what you need to know about using evidence of cheating in a fault divorce.

What is a Fault Divorce?

In a fault divorce, you can cite your spouse’s bad behavior as the reason for ending the marriage. The most common “faults” that can be cited are:

• Adultery – when a spouse voluntarily has sex with someone other than their husband or wife
• Abandonment – when a spouse leaves the marriage without cause and stays away for a long time
• Cruelty – when a spouse is physically or verbally abusive
• Imprisonment – when a spouse is sentenced to jail time
• Drug or alcohol abuse
• Mental illness

Proving one of these “faults” in court can allow you to get divorced more quickly than the required separation period, which is often around one year. It may also allow you to get more of the marital assets in property division.

How Do You Prove Adultery?

Proving adultery often requires solid evidence like:

• Eyewitness testimony – someone who saw the cheating occur
• Admissions or confessions from your spouse
• Love letters, texts, emails indicating an affair
• Compromising photos or videos
• Hotel receipts, credit card statements indicating cheating
• STD test results if new STDs were acquired

You generally can’t just make accusations of cheating – you need actual proof. Many suspicious spouses hire private investigators to gather evidence by following a potentially cheating spouse, checking phone records, hacking emails, etc. But be aware – some of these methods may not be legal. Consult a lawyer before taking any action to obtain proof.

Circumstantial evidence like your spouse suddenly acting distant, dressing differently, or guarding their phone may raise suspicions. But it may not be definitive enough for a court case. The best approach is to work with an experienced divorce lawyer to determine what evidence would be compelling in court.

Does Cheating Affect Alimony?

In some fault divorce states, adultery can impact alimony – also called spousal support. The spouse who cheats may be ordered to pay more alimony, while the faithful spouse receives more. But in many states, the court sets alimony purely based on financial need and ability to pay, not on fault grounds.

For example, if the cheating spouse is the high income earner, the court may order the same alimony amount regardless of adultery. They aim to provide for the lower earning spouse’s financial needs. Your lawyer can advise if adultery is likely to affect alimony in your state.

Does Cheating Affect Child Custody?

Many parents worry that proof of cheating will help them gain full custody of the children. But generally, custody is determined by what is in the children’s best interests – not by adultery itself. Factors like:

• Which parent has been the primary caregiver
• The emotional bonds between each parent and child
• Each parent’s ability to provide a stable home
• The child’s preferences if old enough

Usually carry more weight than adultery alone. However, some circumstances where cheating could impact custody include:

• Cheating resulted in neglect of the children
• Children were exposed to an unsafe environment due to the affair
• Cheating parent has a history of poor moral character

So adultery itself is rarely definitive for custody, but specific effects on the children may be considered.

Does Cheating Affect Property Division?

Finally, many wonder if they can get a greater share of marital property by proving adultery. But again – in most states, property is divided equitably based on factors like:

• Each spouse’s contributions to acquiring assets
• How long the marriage lasted
• Each spouse’s financial situation and needs

So adultery may not directly change property division much. However, expenses related to the affair, like lavish gifts given to a lover, can sometimes be considered “wasteful dissipation”. The cheating spouse may be assigned those expenses so they don’t reduce the faithful spouse’s property award.

In rare cases, the court may award a bit more property to the faithful spouse. But usually assets are divided fairly evenly regardless. Consult your lawyer about what to expect in your jurisdiction.

Should You Use Evidence of Cheating?

Discovering solid proof of a spouse’s adultery can be emotionally painful and devastating. When you’re hurting, it’s natural to want to “punish” them by using evidence of the affair against them in your divorce case.

But since adultery often doesn’t impact most case outcomes directly, pursuing a fault divorce may end up being an expensive process for little practical gain. You’ll likely have to pay your lawyer for more time trying to establish proof. And it may also make negotiations with your spouse more contentious.

However, discussing adultery with your lawyer may still be wise. If there are direct impacts on children or finances resulting from the affair, it may be worth bringing up. Your lawyer can advise you on whether seeking a fault divorce is worth it in your case.

Working with a therapist can also help you process the emotional turmoil, hurt, and anger over your spouse’s cheating in a healthy way as you move forward.

Going through a divorce is difficult enough even without the betrayal of adultery. Focusing on self-care and your future happiness may ultimately be more satisfying than seeking revenge in court. But discussing options with an experienced divorce lawyer can help you make the best choices as you end your marriage.

At the end of the day, you deserve to find peace and joy again. With time and support, you can move forward from infidelity stronger and wiser than before.

References

• Does it Matter to a Court if There is Infidelity in the Marriage?
• If You Cheat, Do You Get Less Money In A Divorce?
• Fault-Based Divorce: How to Prove Adultery
• How Does a Cheating Spouse Affect a Divorce?
• Caught in the Act: ‘It Wasn’t Me’ Cheating and What it Means in Divorce
• Is Adultery Illegal in Illinois?