The First Step to Divorce: File the Paperwork and List the Grounds
Although finding out that your husband had an affair is shocking and emotional, you’ll first have to determine if you can bring up the affair in your divorce and then evaluate whether it would be beneficial to do so.
All states require divorcing spouses to list a reason (ground) for the divorce. However, in the past, courts also asked the filing spouse to prove the allegations before the judge would grant the divorce.
Today, however, every state has adopted a no-fault divorce process that allows you to ask the judge to terminate your marriage, regardless of the reason for your breakup. No-fault divorce eliminates the added burden of proving marital misconduct and is a streamlined way to end a legal marriage that only requires you to demonstrate that you and your spouse are physically separated, no longer compatible, or facing irreconcilable differences.
Using Fault in a No-Fault Divorce
In some states, the no-fault divorce process allows a spouse to introduce evidence of fault for other issues besides the divorce. For example, in Michigan, a spouse’s actions during the marriage may be a factor when the court decides spousal support, custody, and property division.
Depending on where you live, it might be more helpful for you to introduce evidence about your husband’s infidelity to influence the judge’s decisions on how to split custody or divide property rather than as a reason for the divorce.
For example, if your spouse accumulated debt while vacationing with his new girlfriend during your marriage and you can prove it, the court will probably assign that entire debt to your husband after the divorce. If you can’t prove adultery enough to change the custody or property awards, the court will still proceed with your no-fault case using the laws of your state.
Is Filing a Fault Divorce Worth It?
Some states still permit couples to file for “fault” divorce by citing a specific reason, like adultery, as the cause for the breakup. Fault divorces are more complicated than no-fault because the spouse alleging the legal grounds must prove the misconduct to the court with evidence like witness testimony, physical documentation, videos, or other proof. The most common fault grounds include adultery, abandonment, abuse, and drug or alcohol addiction.
Generally, the only benefit to filing a fault divorce is the satisfaction of hearing someone else (the judge) acknowledge that your spouse’s behavior caused your breakup. However, filing a fault divorce may be helpful if you live in a state that requires a mandatory separation period for divorcing spouses.
For example, in Arkansas, divorcing spouses must be physically separated (no cohabitating) for at least 18-months before filing for a no-fault divorce. Couples who file a fault divorce, however, can eliminate the separation period and divorce faster than a no-fault divorce.
Fault divorces tend to be more contentious and expensive than a no-fault divorce. However, if you’d still like to proceed with your fault divorce, you’ll need to list your specific ground in the divorce petition, and then, you’ll need to prove it.
Proving Adultery in Court Isn’t Always Easy
First, it’s important to understand the definition of adultery. Every state varies on the specific meaning, but most defer to Merriam-Webster Dictionary’s explanation that it is “voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner.”
Hire an Attorney
Proving adultery can be difficult, regardless of whether you’re trying to convince the judge that it’s your spouse’s fault you filed for divorce, or you’re using the misconduct for other, divorce-related issues. One of the best ways to ensure the court will accept your proof of the affair is to hire an experienced divorce attorney who is familiar with your state-specific evidence laws.
Present Direct Evidence, Not Feelings
As much as adultery impacts your feelings, the judge won’t side with you if you provide evidence based on your emotions. In other words, you’ll need to find people who are willing to testify in court about their experience and offer any other physical evidence to prove your case.
Other common types of evidence may include:
- photos
- videos, or
- a spouse’s admission.
In some cases, you can use indirect—or, circumstantial—evidence to prove your allegations. Indirect evidence may include bank or credit card statements showing the purchase of gifts for your husband’s lover, phone records showing phone calls between the two, copies of email and/or text messages between your spouse and his lover, and hotel and airline records related to any trips or vacations they took together.
While indirect evidence isn’t the most effective way to prove your case, if you combine it with proof of your spouse’s desire and ability to commit adultery, it may be enough to win your case.
Unfortunately, showing the court your husband’s dating profile will probably not be enough to prove that he had an affair, even if you combine it with suggestive text messages. Remember, it’s not enough to show that your husband had the opportunity and desire to cheat—you must prove that he followed through with his intentions.
Additionally, an important aspect of introducing evidence in court is that you must show that you obtained the evidence legally, meaning you didn’t break any state or federal laws to get it. If you can’t authenticate the evidence, the court may not accept it. So, if you illegally obtained your husband’s password, the court won’t take the evidence.
If you’re facing a divorce and would like more information on your state’s no-fault and fault divorce laws, speak with an experienced family law attorney before you file.