What Is Adultery
Adultery is a voluntary sexual relationship between a married person and someone other than their spouse. In divorce law, it functions as a fault ground, meaning the non-adulterous spouse can file for divorce and potentially use this conduct to influence financial settlements and custody arrangements.
State-Specific Impact
Adultery's effect on your divorce depends heavily on your state. In fault states like North Carolina, South Carolina, and New York, proving adultery can directly affect property division and spousal support awards. North Carolina judges can award alimony based partly on adultery, and it bars the adulterous spouse from receiving alimony in some cases. In no-fault states like California, Florida, and Texas, adultery has little to no legal impact on asset division or support, though judges in Texas can still consider it regarding custody if it affects the child's best interests.
About 17 states still recognize adultery as a ground for divorce, though most have shifted to no-fault options. Even in those states, proving adultery requires clear evidence: testimony, communications, hotel receipts, financial records, or photographs showing the affair occurred.
How Adultery Affects Your Case
- Property Division: In fault states, judges have discretion to award a larger share of marital assets to the non-adulterous spouse. This can shift a 50-50 split significantly.
- Spousal Support: Adultery often bars the adulterous spouse from receiving alimony or reduces the amount. Conversely, the innocent spouse may receive higher support payments.
- Custody Decisions: Judges consider adultery only if it directly harms the child's welfare. An affair alone rarely changes custody unless the conduct involved the child, exposed children to inappropriate situations, or drained marital resources needed for childcare.
- Filing Strategy: In fault states, filing as the wronged party strengthens your negotiating position. Your attorney may recommend documenting the affair before settlement discussions begin.
Burden of Proof
Proving adultery requires clear and convincing evidence in most jurisdictions. Circumstantial evidence counts: patterns of behavior, receipts, witness testimony, or admissions by text or email. You don't need photographs of the act itself. However, in some states, the adulterous spouse's own admission in court is sufficient. Your attorney will determine what evidence is admissible under your state's rules.
Common Questions
- Does adultery affect child custody? Not unless the behavior directly impacts the child's welfare. Courts prioritize the child's best interests. If the adultery involved exposing a minor to inappropriate conduct or created financial hardship affecting the child's care, judges may factor it into custody decisions. The affair itself, conducted discreetly away from children, typically has no effect.
- Can I use adultery to pay less spousal support? If you're the non-adulterous spouse and live in a fault state, yes. Courts often reduce or eliminate support for the adulterous spouse. If you're the adulterous spouse, expect judges in fault states to award higher support to your ex. No-fault states ignore this issue entirely.
- Is emotional infidelity the same as adultery legally? No. Most jurisdictions require sexual contact. An emotional affair, regardless of intensity, does not meet the legal definition of adultery and carries no legal consequences in divorce.