Proving Adultery in Divorce

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The rate of divorce is highest in the United States across the world. There are several reasons based on which a couple may file for a divorce. Each state in US has separate laws and processes to be followed. One of the major grounds for seeking a divorce is adultery. According to statistics 'almost 30% to 60% of married individuals are involved in infidelity at some point of time during their marriage'. Proving adultery in divorce is quite a difficult task. This is because in most of the cases, they are either not discovered or secretly carried on.

A divorce adultery signifies that when one married spouse is cheating on the other spouse i.e. has had sexual intercourse with a third party, then the court may grant a divorce in favor of the complaining spouse. If a spouse can prove that the partner has been cheating, then a 'fault' based divorce is granted by the court. But since, adultery is a secretly performed act; it is usually a tough task to obtain direct evidence, for example, videos or photographs of a couple having sex. The alternative is to have indirect or circumstantial evidence. By doing so, the accusing person proves the intent, inclination and opportunity of adultery. In order to prove adultery, the accusing person must establish that the other spouse had a wish and tendency to perform adultery as and when an opportunity knocks on the door.

Examples of Proving Adultery in Divorce Most states in US do not consider an act of adultery as a crime. But, certainly it is an established ground for divorce. In most no-fault states, it is not mandatory for the complaining partner to furnish evidence. However, in some states, especially in at-fault divorce cases, proof of adultery is a mandatory requirement. The evidence may be direct or indirect.

The spouse accusing adultery should collect one or more of the following sorts of proofs and present them in the court:

• Cell phone records: These must comprise of a number of records to a specific number. Preferably, these calls must be made at night as this indicates intimacy
• Hotel and Travel records: These must show that the accusing person's spouse and another person have traveled to the same hotel or town
• If possible, photographs of the adulterous couple in public in a position that indicates intimacy
• Co-workers ready to provide the testimonials or eye-witness to prove that a particular couple seems engaged in a romantic relationship or not
• Instant messaging or emails between the adulterous couple
• Social networking accounts and exchange of feelings
• Any love letters mentioning clearly the intentions and love messages
• Any major gift bills presented to a third party frequently, as an additional proof details

It is to be noted that the complaining spouse must use legal ways and should be able to preserve the evidence. Any sort of illegal methods of scratching out information of evidence could lead to criminal charges.

Role of court in Proving Adultery in Divorce

Any evidence that proves an opportunity to commit adultery is inadequate. The court demands a clear, positive and satisfactory proof of the inclination and intent to commit adultery. In this manner, a reasonable person might conclude that an opportunity was present and the couple used it to commit adultery.

The accusing party must be able to prove that the accused has a lustful desire as well the chance to fulfill it. Whether such a wish was gratified can be concluded from other facts.

There is no need for the circumstantial evidence to be so robust that no other probable conclusion can be derived at. However, all that is essential is that the proof must distinctly point to the guilt of the spouse accused of adultery.

Use of Confessions in Divorce Adultery Proof

The courts do not grant divorce on the grounds of adultery only on the basis of confessions of the parties. The intent of the court is to prevent collusion and for this, it needs corroboration of some sort of the confessions. In this regard, adultery as a ground of divorce, the judicial system is guided by its conscience more than by a rule of evidence.

The court does not demand that the corroboration by itself should be able to prove adultery. However, the court expects that the corroboration must tend to ascertain the confession.

The following is an adequate basis for judgment of divorce - a sincere, distinct and clear confession of adultery that is not collusive and is confirmed by some sort of proof like correspondence of the guilty person.

If the adultery of the defendant has been proved, but the plaintiff is also guilty of adultery, such a plaintiff is not eligible for a divorce. This is a situation is reminiscent of the saying that 'two wrongs don't make a right.'

A divorce involving a break of trust and faith by a partner is an emotionally painful situation. Though proving adultery in divorce is a difficult task, but scratching out relevant proof is extremely important. A cheating spouse is in no way desirable in the life of a faithful spouse and getting legal justice is his/her right.

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