Exposed: What You Need to Prove Adultery and Win Your Divorce

Adultery is a challenging and emotionally charged topic, but it’s essential to understand the legal requirements for proving adultery before moving forward with a divorce case. 

In this article, we’ll discuss what constitutes adultery, what evidence you need to prove it, and how to use that evidence to win your case in court.

What is Adultery?

Adultery is defined as voluntary sexual intercourse between a married person and someone who is not their spouse. In every state, adultery is considered a form of marital misconduct and is grounds for divorce.

How is Adultery Proven?

To prove adultery in a divorce case, you must demonstrate that your spouse had sexual intercourse with someone else during your marriage. 

This can be done through direct or circumstantial evidence, which we’ll discuss in more detail below.

Types of Evidence That Can Be Used to Prove Adultery

Proving adultery requires more than just a hunch. Here are some of the most common types of evidence that can be used to prove adultery:

1. Direct Evidence

This involves concrete proof that a sexual act occurred, such as video footage, photographs, or eyewitness testimony.

Direct evidence of adultery is the most conclusive type of evidence and involves catching your spouse in the act of having sex with someone else.

2. Digital Evidence

Digital evidence includes text messages, emails, social media posts, and GPS data. In the case of adultery, digital evidence can be particularly useful in establishing an affair, as it can provide a record of communication between the parties involved.

3. Financial Evidence

Financial evidence includes bank statements, credit card bills, and receipts. In the case of adultery, financial evidence can be used to show that your spouse is spending money on someone else or engaging in activities that suggest an affair, such as booking hotel rooms or buying gifts.

4. Circumstantial Evidence

Circumstantial evidence is less conclusive but can still be used to prove adultery. This evidence includes things like your spouse spending time alone with someone they’re attracted to or having romantic texts or emails on their phone. 

This type of evidence is indirect and includes phone records, text messages, emails, and credit card statements.

5. Corroborative Evidence

Corroborative evidence is evidence that supports and strengthens other evidence. 

For example, if you have a hotel receipt showing that your spouse stayed overnight in a hotel with someone and have text messages between them discussing their plans for the night, that would be considered corroborative evidence of adultery. 

6. Suspicious Behavior

While not conclusive, suspicious behavior, such as coming home late, taking frequent business trips, and being protective of their phone or computer, can be used to build a case that your spouse is having an affair. 

7. Admission of The Affair

If your spouse admits to having an affair, this can be used as evidence in court.

What Evidence of Adultery is Not Admissible in Court?

While some evidence may seem convincing, it may not be admissible in court. Here are some examples:

  • Hearsay: This refers to statements made by third parties outside of court that cannot be proven, such as rumors or gossip.

  • Illegally obtained evidence: Evidence obtained through illegal means, such as hacking into your spouse’s email account, is not admissible in court.

  • Character evidence: Evidence that seeks to establish a person’s character or reputation is generally not admissible in court.

Steps to Follow to Gather Evidence of Adultery:

  • Hire a Private Investigator: A private investigator can gather evidence of your spouse’s infidelity that can be used in court. They can follow your spouse, take photos and videos of them with their lover, and even document their activities and interactions.

  • Monitor Your Spouse’s Phone and Computer: If you can access your spouse’s phone or computer, you can look for evidence of infidelity. Check their texts, emails, and social media accounts for suspicious messages or interactions.

  • Talk to Witnesses: If you know someone who has seen your spouse with their lover, ask them to provide a witness statement. This can be a powerful piece of evidence in court.

  • Keep a Record of Your Spouse’s Activities: Document your spouse’s activities, including where they go, who they meet, and what they do. This can help establish a pattern of infidelity.

  • Gather Physical Evidence: If your spouse brings gifts or other items from their lover into your home, keep them as evidence.

  • Monitor Your Banking and Credit Card Statements: Looking at credit card and bank statements may reveal certain transactions that could be evidence of an affair.

Be Careful Gathering Evidence of Adultery! 

While technological advancements have made it easier to gather evidence, there are also increased privacy concerns. 

Laws have been established to address unlawful access to information, which can result in criminal penalties. Here are some tips to keep in mind:

  • Actions such as unauthorized use of a spouse’s cell phone passcode, creating fake social media profiles, or using key-stroke recognition software to obtain passwords are all considered criminal acts according to state and federal laws.

  • Obtaining evidence illegally may result in inadmissible evidence in court and possible criminal consequences.

Exercise caution when searching for evidence of infidelity on your spouse’s computer, cell phone, or social media accounts. Without proper knowledge of privacy laws, you could obtain evidence that is inadmissible in court and face criminal consequences.

Additionally, be aware that obtaining evidence through illegal means, such as unauthorized access to passwords or creating fake social media profiles, can result in severe legal consequences.

To avoid this, it’s best to consult with an attorney to learn about lawful means of gathering evidence of infidelity. This can help you to gather admissible evidence without violating privacy laws. 

The Impact of Adultery on Divorce Proceedings

Adultery can have a significant impact on divorce proceedings, particularly in the areas of property division, spousal support, and custody and visitation.

1. Property Division

In most states, the starting point for the division of marital property will be 50/50, and the property will be divided equally between the spouses in the event of a divorce. However, if one spouse can prove that the other committed adultery, the court may award them a larger share of the marital property.

2. Spousal Support

Spousal support, also known as alimony, is money paid by one spouse to the other after a divorce to help support them financially. Adultery can impact spousal support awards, as the court may be less likely to award support to a spouse who committed adultery.

3. Custody and Visitation

Adultery can also impact custody and visitation arrangements. In some cases, the court may determine that the spouse who committed adultery is not a fit parent and may limit their custody or visitation rights.

Frequently Asked Questions

Q. Can I use a private investigator to gather evidence of adultery?

Yes, you can hire a private investigator to gather evidence of adultery. However, remember that the evidence obtained by a private investigator may not be admissible in court if it was obtained illegally.

Q. What if my spouse denies the affair?

If your spouse denies the affair, you must provide evidence sufficient to convince a court of law that the affair took place. This may include a combination of direct, circumstantial, digital, financial, and testimonial evidence.

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

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