How Do I Prove Adultery?

One party can obtain an absolute divorce from the other if he or she can prove that the other party committed adultery–that is, that the other party cheated on his or her spouse. The law recognizes that acts of adultery usually occur secretly, therefore, it does not require first-hand proof of the actual act of intercourse in order to establish the ground of adultery. Absent such first-hand evidence, the law requires that only two elements be shown:

  • Disposition
  • Opportunity

That is, the party need only show that the other party has the disposition, or personal character, that allows him or her to commit such an act, and that the party had the opportunity to commit the act.

Recrimination is a common issue on the topic of adultery. Recrimination occurs when both parties commit adultery, and the question arises whether both are thereby prohibited from obtaining a divorce on the ground of adultery. The law states that recrimination is not a bar to a claim for divorce based on adultery, but it will be a factor that the court will consider.

Condonation is another common issue on this topic. Condonation occurs when one party learns that the other spouse has committed adultery but forgives the other spouse or continues to reside with the other spouse as husband or wife. As with recrimination, condonation is not a bar to a claim for
divorce based on adultery, but it will be a factor that the court will consider. The court may conclude that, if the parties continued their marital relationship for a substantial period of time after disclosure of the adultery, then the adultery could not have been the real cause of the subsequent breakup
of the relationship.

Adultery is not a ground that is available for obtaining a limited divorce.

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