Adultery, defined as voluntary sexual intercourse by a married person with someone other than their spouse, is a traditional fault ground for divorce in many U.S. states. In practical terms, proving a spouse’s infidelity can sometimes affect divorce outcomes like asset division and spousal support.
However, many states now allow no-fault divorces, making adultery largely irrelevant to obtaining the divorce itself. As a result, proving adultery carries high stakes but also significant challenges.
Courts demand concrete proof, and accusations alone are not enough. Understanding the legal definition of adultery, how fault grounds work in different states, and the stringent evidence requirements is crucial for anyone considering using infidelity as a basis for divorce.
Legal Definition of Adultery in Divorce Cases
In legal terms, adultery is typically defined very precisely. For example, Virginia law defines adultery as any married person who “voluntarily shall have sexual intercourse with any person not his or her spouse”.
This definition – essentially voluntary sexual relations outside marriage – is common across states with fault-divorce grounds. Notably, Virginia’s statutes explicitly list adultery as a ground for divorce.
In practice, proving adultery requires showing that the spouse willingly engaged in a sexual relationship outside the marriage; mere kissing or emotional affairs do not usually qualify.
How adultery is treated in divorce depends on whether the state allows fault-based proceedings. All states now recognize no-fault divorce (irretrievable breakdown, irreconcilable differences, or living apart) as a valid ground, meaning a spouse can dissolve the marriage without accusing the other of wrongdoing.
Only a minority of states are “true” no-fault jurisdictions that completely bar fault claims. In states that still permit fault divorces, adultery remains a recognized ground, often alongside desertion or cruelty, but it must be specifically pled if the plaintiff wishes to rely on it. As one Virginia family law attorney explains, adultery is a fault ground that allows a divorce without the usual waiting period.
New Jersey attorney notes that adultery is listed among the permissible fault grounds in that state, alongside desertion and other causes. Whether or not a spouse chooses to go the fault route, adultery allegations introduce extra proof requirements and potential ramifications beyond merely ending the marriage.
States That Recognize Adultery as Grounds for Divorce
Although every state offers no-fault divorce, many still allow fault-based grounds, including adultery, to influence divorce proceedings. Examples include Virginia, South Carolina, New Jersey, New York, Texas, and others.
For instance, South Carolina law expressly states that “no divorce shall be granted except upon one or more grounds, including adultery. Likewise, Virginia’s statutes grant a fault divorce “for adultery” as a matter of law.
New York and New Jersey also count adultery among the grounds that can be alleged in a complaint, though courts in those states typically encourage no-fault filings.
The availability of a fault divorce means that adultery can be alleged, but outcomes vary by jurisdiction. In fault states, proving adultery can potentially affect the divorce decree, whereas in no-fault-only states, it is irrelevant to the court’s decision.
For example, in Virginia or Texas, a divorcing spouse can choose to cite adultery (or other marital misconduct) to end the marriage. A Texas family law firm notes that adultery remains a basis for divorce under Texas law.
However, the presence of a no-fault option often means many people simply divorce on the grounds of irreconcilable differences. As a New Jersey lawyer explains, while adultery is technically a fault ground in New Jersey, most divorces are filed on no-fault grounds, and the courts treat fault allegations with caution.
Because adultery can be a fault ground, it can also influence aspects of the divorce in some states. In South Carolina, for instance, committing adultery automatically disqualifies the offending spouse from receiving alimony.
Similarly, Virginia law denies permanent spousal support to a spouse when the other spouse has a fault ground of adultery. In New York and New Jersey, however, courts generally refuse to punish an adulterous spouse via alimony or support unless the conduct is exceptionally egregious.
These examples illustrate that, in states allowing fault grounds, adultery may still play a role, especially in financial and custody decisions, even if it no longer dictates the divorce itself.
Burden of Proof in Adultery Cases
When adultery is alleged, the spouse making the accusation carries the burden of proof. Courts require concrete evidence, not just rumor or suspicion. In many jurisdictions, the standard is quite high: for example, Virginia law demands “clear and convincing evidence” of adultery.
This means the evidence must establish the infidelity with a high degree of certainty (more than 50%, but less than near certainty). By contrast, other states apply the ordinary civil standard of “preponderance of the evidence,” meaning the judge or jury must find it more likely than not that the affair occurred.
Texas, for instance, explicitly states that while direct evidence is best, circumstantial evidence meeting the preponderance standard is acceptable.
Regardless of the exact standard, mere hearsay or innuendo will not suffice. As one South Carolina divorce attorney cautions, spouses must produce “hard proof” of an affair – rumors or gossip won’t convince a judge.
Evidence must be concrete enough to satisfy the court that infidelity “more likely than not” took place. One New Jersey source similarly notes that when alleging fault, “you are the one who has the burden of proof” and must present specific evidence of the adulterous conduct.
In practice, this means that an accusing spouse often needs documentary or testimonial corroboration in addition to any personal suspicions. Attorneys frequently note that the burden can be so onerous that many clients ultimately withdraw the adultery claim or settle instead of litigating it in court.
Types of Evidence Accepted in Court
In divorce cases, courts distinguish between direct and circumstantial evidence of adultery. Direct evidence – for example, testimony of an eyewitness, a video of the act, or an admission by the spouse – is rare due to the private nature of sex.
As one family law blog observes, because adultery usually occurs in secret, “if it were not for circumstantial evidence, the practice of adultery would scarcely be known to exist”. In fact, courts generally do not require an accused spouse to be caught in the act.
What is commonly needed is strong circumstantial proof that the spouse had the opportunity and motive.
The “opportunity and inclination” test is a classic example: the accusing spouse must point to times when the adulterous act could have happened (same location and unsupervised) and show the alleged paramour had reason or disposition to be intimate. A South Carolina appellate case explains that proving both “opportunity” and “inclination” can establish adultery.
Evidence showing an affair partner visiting the marital home at odd hours or a married spouse going out late alone can demonstrate opportunity. Showing affectionate behavior or romantic correspondence in public can suggest an inclination toward more private intimacy. Texas courts similarly recognize that while direct proof is desirable, circumstantial evidence that logically supports the claim is admissible.
In short, while catching a spouse in the act (direct evidence) is seldom feasible, judges will accept indirect proof – phone records, hotel receipts, transactional records, etc. – as long as it persuasively points to an affair.
The key is that such evidence must be “clear and positive,” not speculative, when viewed as a whole. Every piece of evidence should help the factfinder see the infidelity as more probable than not, satisfying the applicable burden of proof.
Acceptable Forms of Proof
Courts allow a wide range of evidence to establish adultery, as long as it is legally obtained and properly authenticated.
Common admissible proofs include testimony and affidavits. This may come from private investigators who observed the spouse with a lover, friends or relatives who witnessed suspicious conduct, or even admissions by the unfaithful spouse.
A Virginia family law guide notes that in addition to direct statements, “corroborating evidence” such as witness testimony, photographs, and written communications can be very helpful.
Digital communications and records often form the bulk of proof today. Text messages, emails, social media chats or dating app conversations that indicate a secret relationship are frequently used.
One New York attorney explains that circumstantial proof can include “hotel receipts, phone records, texts, letters, or similar proof” to show a spouse had the desire and opportunity for adultery. Cell phone call logs or GPS location history, if lawfully obtained, can establish presence at a hotel or other meeting place with the other person.
Financial documents are also relevant: credit card statements or bank records showing large purchases, travel expenses, or gifts paid to the paramour can corroborate an affair. For example, a prominent New Jersey attorney points out that if one spouse spent marital funds on a lover, for vacations or lavish gifts, the innocent spouse may demand reimbursement for those expenses as part of the divorce settlement.
Photographs and video evidence can be powerful if legitimately collected: pictures of the spouse and alleged lover hugging or kissing in a semi-private setting, or surveillance footage of secret rendezvous, can carry weight in court. However, any such recording must be captured legally (see next section).
Also, if the cheating spouse admits the affair – in writing, text, or testimony – that admission is exceptionally probative, in sum, admissible proof can include nearly anything tangible that ties the spouse to an extramarital sexual relationship: investigator reports, digital logs, financial receipts, travel itineraries, hotel folios, social media posts, emails, and recorded conversations (where legal) are all examples.
The stronger and more detailed the documentation (dates, times, participants), the better the evidence withstands judicial scrutiny.
Legal and Ethical Restrictions on Gathering Evidence
It is crucial to gather evidence lawfully. Federal and state privacy laws strictly forbid certain methods of spying or eavesdropping on a spouse. For instance, the federal Wiretap Act (part of the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq.) makes it a crime to intercept or disclose another person’s communications without authorization.
This means secretly recording private conversations or hacking into a spouse’s emails or phone can land one in legal trouble, and any evidence obtained that way may be thrown out of court.
As one legal expert warns, if a message or call is obtained through unauthorized access (like stealing passwords or using hidden recording devices), it violates the ECPA and can trigger criminal penalties.
State laws often mirror this prohibition. For example, unauthorized one-party wiretaps are felonies in many states, and even searching a spouse’s phone without permission can violate both state and federal statutes.
The consequences of illegally gathered evidence are severe. Courts will typically exclude evidence obtained in violation of privacy laws. Worse, the offending spouse could face fines or even jail time.
As one lawyer puts it, evidence intended to prove adultery can “harm your case more than help” if obtained improperly. It may also open the door to lawsuits by the other spouse for invasion of privacy.
For these reasons, many attorneys strongly recommend using a licensed professional investigator rather than attempting to spy on oneself. Licensed PIs know the boundaries: they will not trespass on private property or hack electronic accounts without consent.
Their training and licensing ensure that any surveillance, photography, or database search they conduct is legal and defensible. Courts tend to trust evidence gathered by a reputable investigator because it was collected within the law.
In short, to preserve admissibility, you must respect wiretapping and privacy statutes: hire qualified help, and avoid any evidence gathering that would breach legal or ethical standards.
Role of a Private Investigator
A private investigator (PI) can play a pivotal role in adultery cases. Investigators are skilled at uncovering hidden affairs using surveillance, background checks, and forensic accounting. Because they are licensed, their findings are generally admissible and carry weight in court.
An experienced PI knows how to document an extramarital relationship step by step: tailing the spouse to meetings, taking timestamped photographs, collecting receipts, and compiling a detailed report. Judges and opposing counsel often regard a PI’s sworn affidavit as highly credible evidence.
Crucially, licensed PIs understand legal boundaries. A good investigator “knows the laws and can gather evidence legally.” They will not break any privacy laws; instead, they use professional techniques that avoid wiretapping or hacking. Their surveillance might take place in public settings (e.g., parking lots, restaurants) where the spouse has no expectation of privacy.
The reports and sometimes live testimony from the PI can corroborate other evidence and offer the court a narrative of the affair. In many cases, having a PI’s testimony makes the difference between vague suspicion and a well-supported case.
However, the credibility of a PI’s findings depends on legality. If a PI acted outside the law, their evidence (and your case) would be undermined. Therefore, always choose a reputable, licensed investigator.
Their professional reputation means a higher degree of trust: the court assumes they gathered evidence “within legal boundaries”. In summary, a competent private investigator can turn rumors into concrete proof, and their evidence, when properly collected, is among the most persuasive in an adultery divorce.
How Adultery Impacts Divorce Outcomes
Division of Property
In equitable-distribution states, marital property is generally divided without regard to fault; mere adultery alone usually does not cause a spouse to lose assets. In other words, an affair does not automatically trim a cheater’s share of the marital pie. A recent New York family law analysis emphasizes that, as a rule, grounds for divorce do not alter asset division.
The key exception occurs if marital resources were depleted by the affair. For instance, if the adulterous spouse spent joint funds on lavish trips or gifts for the paramour, courts can treat that as a dissipation of assets. New York law specifically treats using marital funds to finance an affair as an “egregious” marital fault justifying an adjustment. Similarly, South Carolina divorce law allows the innocent spouse to recoup money spent on the affair.
A South Carolina attorney explains that any lavish expenditures – jewelry, vacations, etc. – paid for with marital assets may be compensated by awarding them to the wronged spouse. A well-known example is a case in which a husband secretly leased an expensive apartment for his mistress; the wife ultimately received a cash award to compensate for those hidden expenses.
By contrast, in jurisdictions like Virginia or New Jersey, courts rarely reallocate property based on adultery alone. Although Texas law does allow a judge to consider adultery when dividing assets, the trend is to favor equitable sharing regardless of fault. Likewise, New Jersey courts generally decline to punish a cheating spouse by altering the property split, focusing instead on a fair distribution of all marital assets.
In summary, unless a spouse can show that marital resources were diverted to fuel the affair, adultery by itself typically does not change how the home, savings, and other assets are divided.
Alimony and Spousal Support
Adultery can have a more direct impact on alimony in some states. Virginia law explicitly prohibits permanent spousal maintenance to a spouse who has been “guilty of a ground of divorce,” such as adultery.
In practice, that means if the court finds that one spouse cheated, the adulterer cannot receive long-term support from the wronged spouse – the court considers that denying support would be a “manifest injustice,” taking into account each party’s fault and finances. South Carolina is even stricter: an act of adultery automatically disqualifies the wrongdoer from alimony (not just permanent, but any alimony during the separation as well).
Texas law also considers fault in awarding maintenance; evidence of infidelity may tip a judge’s balance in favor of the innocent spouse. Indeed, the Texas Family Code makes adultery a ground for divorce and allows it to weigh on spousal support awards.
On the other hand, several states have largely detached alimony from fault. New Jersey, following a landmark Supreme Court decision, holds that ordinary marital misconduct like an affair should not influence spousal support awards unless it is extraordinarily “egregious”.
In practical terms, New Jersey judges will not deny alimony simply because one spouse cheated. Similarly, New York courts generally ignore adultery when setting support unless the affair involved extreme behavior that harmed the marital partnership.
The lesson is that alimony outcomes vary: in some jurisdictions (like Virginia or Texas), adultery can be a significant negative mark against the offending spouse. In contrast, in others (like New Jersey), it makes little to no difference.
Custody and Visitation
Courts awarding child custody and visitation almost universally focus on the children’s best interests, not the moral faults of the parents. Adultery is generally irrelevant to custody unless the affair directly endangered the children.
For example, a New Jersey divorce blog explains that evidence of infidelity normally has “no bearing on the children’s best interests”. In other words, catching Dad with a secret girlfriend typically will not cost him overnight visits with the kids, unless that behavior involves exposing the children to harm. Likewise, New York lawyers emphasize that custody orders should not be used to punish a cheating spouse.
Parents do not become unfit merely by having an affair; however, if an affair leads one parent to neglect or abuse the children (or expose them to violence or unsafe situations), that conduct could factor into the custody decision. Otherwise, courts will not impose custody or visitation changes solely due to adultery.
A lawyer advising clients notes bluntly that judges are “unlikely to punish” infidelity by denying custody – children’s welfare comes first. In summary, an affair will have virtually no effect on custody or visitation plans unless the adulterous parent’s behavior directly jeopardizes the children.
Challenges in Proving Adultery
Proving an affair is notoriously difficult. As mentioned, the evidentiary burden is high and often beyond simple suspicion. Even when a spouse is clearly unfaithful, legal defenses can block an adultery claim. Two such doctrines are condonation and recrimination.
Condonation occurs when the wronged spouse, after learning of the infidelity, voluntarily resumes sexual relations with the cheating spouse. In effect, the innocent spouse forgives the offense. Legally, this bars that instance of adultery from being used as grounds for divorce.
As one Virginia case put it, having intercourse with your spouse after you know of their affair means you can no longer complain of that affair. In practice, if you sleep with your spouse again after finding out they cheated, the court may view it as having pardoned the misconduct.
Recrimination is the related concept that the accusing spouse must come to court with “clean hands.” If the plaintiff spouse was also guilty of similar marital fault, then recrimination applies.
For example, if, after learning of the affair, the wife also had a secret sexual relationship, the husband’s adultery claim may be barred. Courts will refuse to grant a divorce on adultery grounds if both parties are at fault.
Virginia courts describe this by noting that one cannot seek relief while committing the same offense; if the complaining spouse also cheats, they can’t benefit from the other’s infidelity. In sum, engaging in your own adultery or forgiving your spouse’s adultery can nullify a divorce claim based on the affair.
Other defenses exist as well. Collusion (where spouses conspire to fabricate adultery) will defeat the claim, as will statutory bars like laches or resignation to petition if one spouse refused to remarry after learning of the affair.
But by far the biggest challenge is the evidentiary hurdle itself. Many divorce attorneys warn that even with solid evidence, proving adultery in court is expensive and unpredictable. These hurdles mean that spouses must carefully weigh whether pursuing the claim is worth the effort.
Alternative Strategies if Adultery is Difficult to Prove
Given the obstacles, most family law experts advise using alternative approaches. Nearly every state allows no-fault divorce, so a common strategy is simply to file on irretrievable breakdown or irreconcilable differences.
This way, neither party has to blame the other, and no proof of infidelity is required. In jurisdictions with mandatory separation periods, spouses often wait it out or negotiate a short separation agreement to meet that requirement. In effect, this achieves a divorce without the acrimony and cost of a fault trial.
Even when evidence of adultery exists, it can be used tactically rather than as the literal ground for divorce. A savvy divorcing spouse might use proof of the affair as leverage in settlement talks or mediation. For instance, documenting the affair’s expenses can pressure the cheating spouse to compensate the family.
One law firm blog notes that jewelry, trips, and bills charged to support the affair can become a point of negotiation over asset division. Likewise, if a spouse flaunted the affair or became abusive, the other spouse might argue that those circumstances justify a better alimony or custody arrangement. In some cases, a prenuptial agreement may even contain a clause penalizing infidelity, which can be enforced if the affair is proved.
In short, if proving adultery in court is too onerous, couples often default to no-fault or use the evidence behind the scenes. Attorneys will typically advise that in modern practice, forging a high-level agreement on property and support is more reliable and private than litigating a fault divorce.
That said, having evidence of adultery ready can give the innocent spouse bargaining power. A lawyer might recommend mentioning the affair during negotiations to prevent unfair division of jointly owned assets (as a cheating spouse might try to hide money, for example).
FAQs
What evidence is needed to prove adultery in a divorce?
You need solid, admissible proof of an extramarital relationship. Courts will accept things like eyewitness testimony (though rare), photographs or videos of the couple together, or written admissions. More commonly, evidence comes from communication records (texts, emails, social media messages) and financial or travel documents.
For example, a string of hotel receipts, credit-card charges for gifts or trips with the affair partner, or phone call logs to that person can all serve as circumstantial proof. A Virginia legal guide notes that corroborating evidence, like witness accounts, written messages, or documentation, strengthens an adultery claim.
Importantly, gossip and unverified tips are not sufficient; you must show concrete proof that the spouse likely had sex with someone else. Hiring a private investigator can help collect this evidence legally.
What is the burden of proof for adultery, and who has to prove it?
The spouse alleging adultery (the plaintiff) bears the burden. You must convince the court that the affair occurred. The standard varies by state: some require “clear and convincing” evidence (a high level) while others use the usual civil standard of “preponderance of the evidence.”
Virginia, for example, requires clear and convincing proof, meaning you must show it is substantially more likely than not. Texas uses a preponderance standard. Regardless, the key is that your evidence must be strong – hearsay or suspicion isn’t enough. A lawyer will advise you on what specific evidence meets the state’s standard (e.g., documented facts, witness statements).
Can I use recordings or hacked emails as evidence of adultery?
You must proceed carefully here. Federal and state laws protect electronic communications and private conversations. Secretly recording a spouse or breaking into their phone/email without consent is often illegal (it can violate the federal Wiretap Act or state privacy laws).
If evidence is obtained illegally – say, by tapping phone lines or password-hacking – courts will typically exclude it. Instead, use legal means: subpoenaed phone records, social media posts, or texts sent to you directly.
Always consult a lawyer before attempting any surveillance. A licensed private investigator, for example, can lawfully conduct surveillance (like staking out a hotel lobby) but will not intercept private communications unlawfully. In summary, only evidence gathered within legal boundaries is likely to be admitted.
How does proof of adultery affect alimony or asset division?
This depends on your state. In some states (like Virginia or South Carolina), being found guilty of adultery can bar you from receiving alimony. It may also allow the innocent spouse to recover any marital assets spent on the affair.
In Texas, for example, judges can consider infidelity when deciding spousal support and often favor the non-cheating spouse. In other states – notably New Jersey and New York – courts have ruled that typical adultery is not “egregious” enough to change support or property awards.
There, adultery alone usually will not increase the innocent spouse’s share unless the affair involved something extra, like using large amounts of marital funds. It’s best to ask a lawyer how your jurisdiction treats marital misconduct.
Will adultery affect child custody?
Generally no. Custody is decided by the best interests of the child, not by punishing a cheating parent. Simply having an affair, without more, does not make a parent unfit. Courts assume an extramarital relationship is an adult matter unless it directly harms the children.
For example, if a parent exposes a child to the paramour’s dangerous behavior or neglects the child due to the affair, the court might consider it. Otherwise, it has little effect. New Jersey sources note that evidence of an affair “has no bearing on the children’s best interests”. Thus, you generally cannot lose custody simply because you or your spouse cheated.
What are condonation and recrimination in an adultery claim?
These are two defenses a court may raise. Condonation means the innocent spouse knew of the adultery and later forgave it (for example, by resuming marital relations). If condonation occurs, the original act of cheating is considered forgiven and cannot be used as a divorce ground.
Recrimination means both spouses have been guilty of similar offenses. If the person accusing adultery also committed adultery, they have “unclean hands” and the court can deny the divorce on that fault ground. In practical terms, if you cheat after learning of your spouse’s affair, you can’t then claim adultery as a basis to divorce them.
Should I file a no-fault divorce instead?
If proving adultery seems too hard, a no-fault divorce (such as citing irreconcilable differences or living apart) is often simpler and cheaper. All U.S. jurisdictions now allow no-fault divorces, so you can end the marriage without proving fault. Attorneys frequently advise this approach when possible.
Using a no-fault ground avoids the costs of evidence-gathering and the emotional strain of fault allegations. In negotiations, any incriminating evidence of adultery can still be used informally – for example, to claim reimbursement of marital funds spent on the affair or to argue a better support arrangement – but you file on peaceful grounds.
Discuss your situation with a lawyer: if your state offers an easy no-fault route, that may be the most practical path unless there is a compelling reason to litigate the adultery.
Conclusion
Proving adultery in a divorce is a complex, fact-intensive process. It requires careful collection of admissible evidence and often a high standard of proof. As one attorney observes, even though adultery feels like the ultimate betrayal, it “will most likely not play a major role in the way the court rules” in the divorce.
In many cases, pursuing a no-fault divorce or leveraging the affair evidence quietly yields similar results without the legal headaches. Because the rules vary by state and the stakes (such as alimony, asset division, and custody) are high, it is essential to consult an experienced family law attorney.
A skilled lawyer can evaluate the strength of your evidence, ensure it was gathered legally, and advise whether proving adultery is worth the effort. Ultimately, the goal is to reach a fair settlement or court order. Whether you choose to allege adultery or not, professional guidance will help protect your interests and navigate the emotional and legal complexities of divorce.