Adultery, Divorce, and the 5th Amendment

In family law, few topics elicit as much controversy and emotional upheaval as adultery and divorce. 

In general, a person going through a divorce has the right to refuse to answer any question that might lead to a conviction for criminal adultery. 

This would include refusing to answer questions about an extramarital affair if there is a threat of prosecution. 

While a person has the right to take the 5th Amendment during a divorce deposition or trial, doing so can have severe consequences for the divorce. Keep reading to see how invoking the 5th Amendment can impact your divorce.

Can a Person Use The 5th Amendment Privilege During a Divorce? 

The Fifth Amendment to the U.S. Constitution states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” 

While the amendment speaks only of criminal cases, the courts have allowed a person to use the 5th Amendment in civil cases, including divorce.

The 5th Amendment allows an individual to refuse to answer any question where the answers might incriminate him in future criminal proceedings.

Adultery And The 5th Amendment 

Traditionally, the most common reason for invoking the Fifth Amendment in family law litigation is when a party in a divorce case refuses to answer questions relating to an extramarital affair.  

People going through a divorce have the right to refuse to answer any questions related to an extramarital affair because the answer might lead to a conviction for criminal adultery.

As of 2023, there are only 16 states that make adultery illegal. Those states are Alabama, Arizona, Florida, Idaho, Illinois, Kansas, Michigan, Minnesota, Mississippi, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, Virginia, and Wisconsin. 

To Learn More About This Topic, You Can Read This Article

As criminal adultery statutes drop in number and as divorce cases generally attach less weight to fault, invoking the 5th Amendment during a divorce trial has become less common.

Negative Consequences of Taking the 5th During a Divorce 

Invoking the Fifth Amendment during a divorce can have several negative consequences. Here are a few potential drawbacks:

1. Adverse Inference (Most Common Consequence)

In a divorce case, when one spouse invokes the Fifth Amendment, the court can draw adverse inferences about their behavior or actions. 

An adverse inference is the most common penalty that can attach to invoking the Fifth Amendment privilege in a divorce case. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

The court may assume that the spouse is hiding important information or attempting to conceal incriminating evidence. This can harm the invoking spouse’sspouse’s credibility and favor the other spouse’sspouse’s claims.

Tim’s Legal Tip: If a witness is asked about adultery and asserts the 5th Amendment privilege, the court can draw an adverse inference that the witness actually committed adultery even though the person did not answer the question. Griffith v. Griffith, 506 S.E.2d 526, 529 (S.C. Ct. App. 1998).

2. The Court Refuses To Allow The Person Taking The 5th To Testify At Trial

A stricter remedy is to hold that the spouse taking the 5th Amendment cannot testify at the trial. 

In a Nevada case, a mother refused to answer any questions about the purchase or use of drugs, asserting her Fifth Amendment privilege. The trial court held that the mother would only be permitted to testify at trial if she waived her privilege and answered the questions. Meyer v. Second Judicial District Court, 591 P.2d 259, 260-61 (Nev. 1979).

3. Denial of All Affirmative Relief

The stiffest penalty a court can issue for a person taking the 5th Amendment during a divorce is to deny that person all affirmative relief they requested during the divorce. This can include a request for alimony.

Tim’s Legal Tip: The general rule in many states is that a witness who fails to answer questions when asked, either in discovery or at trial, is in no position to seek affirmative relief from the court.

For example, in a North Carolina case, the husband asked the wife discovery questions about adultery, and she pled the Fifth Amendment privilege. 

The trial court penalized the wife for invoking the 5th by striking her request for alimony. The court held that the wife abandoned her alimony claim by refusing to answer questions regarding her alleged adultery. Cantwell v. Cantwell, S.E.2d 129, 130 (N.C. Ct. App. 1993).

4. Custody and Alimony Determinations

Divorce cases often involve issues of child custody and financial support. When one spouse refuses to testify or provide relevant information, it can make it difficult for the court to make fair decisions regarding child custody arrangements or calculate appropriate alimony or child support.

In my experience, courts are more inclined to make decisions in favor of the other spouse, who may appear more cooperative and forthcoming.

5. Property and Asset Division

Divining marital assets and property is a crucial aspect of divorce proceedings. By invoking the Fifth Amendment, a spouse may hinder the court’s ability to ascertain the full extent of their financial situation, including income, assets, and debts. 

In my experience, courts are more inclined to make decisions favoring the other spouse, who may appear more cooperative and forthcoming.


Q. Can adultery affect child custody decisions?

Yes, adultery can potentially affect child custody decisions, but the impact varies depending on the laws of your state and the specific facts of the case. 

Family courts prioritize the best interests of the child when making custody determinations. If the court finds that the adulterous behavior negatively impacts the child’schild’s welfare or creates an unfit environment, it may influence the custody outcome. 

However, it is essential to remember that courts consider various factors, and the impact of adultery alone might not be determinative.

Q. Does the 5th Amendment protect against divorce-related penalties?

The 5th Amendment primarily safeguards against self-incrimination in criminal cases. In divorce proceedings, penalties such as property division, child support, or spousal support are considered civil matters. 

Therefore, the 5th Amendment may not shield individuals from these consequences. It’s advisable to consult with an attorney to understand how the 5th Amendment may apply to the specific circumstances of a divorce case.

Q. Can adultery affect alimony or spousal support awards?

In some jurisdictions, adultery can be a factor in determining alimony or spousal support. Courts may consider adulterous behavior when assessing the need for support and the ability of the parties to pay. 

However, the weight given to adultery in these decisions varies, and courts often consider a range of other factors, such as the length of the marriage, the standard of living during the marriage, and the financial resources of both parties.

Q. Can invoking the 5th Amendment be used against me in a divorce case?

Invoking the 5th Amendment privilege against self-incrimination can be perceived negatively by family courts. While the privilege is a constitutional right, family law judges can draw adverse inferences from the party’sparty’s refusal to answer questions or provide evidence. 

This can impact various aspects of divorce cases, including property division, child custody, and spousal support. It is crucial to consult with an experienced attorney before invoking the 5th Amendment privilege.

Q. How can I protect my rights during a divorce involving adultery allegations?

If you are facing divorce proceedings involving allegations of adultery, it is crucial to seek legal representation from an experienced family law attorney. 

They can guide you through the complexities of the process, protect your rights, and advocate for your best interests. Your attorney will help you understand the applicable laws in your jurisdiction, navigate the evidence-gathering process, and develop a strategic approach to your case.

Q. Is mediation an option in adultery-related divorces?

Mediation can be an option in adultery-related divorces, depending on the parties’ willingness to engage in open and honest discussions. 

Mediation provides an opportunity to resolve disputes amicably, potentially reducing the emotional toll and expense of litigation. 

However, assessing the relationship dynamics, the level of trust, and the willingness to compromise is crucial before pursuing mediation. 

Consulting with a skilled mediator or family law attorney can help determine whether mediation suits your case.


Navigating the complexities of adultery, divorce, and the 5th Amendment requires careful consideration and expert guidance. As individuals face the emotional challenges of divorce, understanding the impact of adultery on legal proceedings and the protection provided by the 5th Amendment becomes crucial. 

What To Read Next


Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

Recent Posts