What Are My Legal Rights If My Spouse Cheated on Me?

About Brette Sember, JD | Divorce.com

By Brette Sember, JD Updated Feb 12, 2024


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According to one study, adultery is reportedly the cause of 21% of divorces.

In general, men are more likely than women to cheat. However, women between the ages of 18 and 29 are slightly more likely than men to do so. After age 30, the trend flips, and men have higher rates of infidelity.

You may be unsure what to do if you discover your spouse is cheating. To understand your rights if your spouse committed adultery, follow the tips in this article.

Key Takeaways

  • Adultery is technically a crime in some states.
  • To prove adultery, you need a third-party witness.
  • Adultery can be used as grounds for divorce but complicates the proceedings.
  • Infidelity can impact the property division if marital funds were involved in the affair.
  • Alimony can be influenced by adultery in some instances.
  • Child custody is affected by adultery when the affair directly impacts the child.

Is Cheating On Your Spouse Breaking the Law?

Adultery is technically a crime in 16 states. While the penalties could include fines or jail time, these laws are rarely enforced. In addition, there are questions as to whether these laws are even constitutional and would be held up under appeal.

jealous wife spying

How Do I Prove That My Husband Cheated?

If you want to prove that your spouse committed adultery in your divorce case, you must have a witness other than yourself to the act of adultery. This usually means hiring an investigator to obtain photos, video, or eyewitness testimony.

It is very challenging to prove adultery because of these evidentiary requirements. It is also unnecessary since every state in the U.S. allows no-fault divorce. You don't need to prove your spouse cheated to get a divorce.

My Spouse Committed Adultery: What Are My Rights?

If your spouse cheated, the biggest thing to consider is your own mental and emotional health. Learning that your spouse has been unfaithful is stressful and unbalancing. Take care of yourself and see a therapist or counselor if you need help.

Although you don't need to prove adultery to get a divorce, it can impact your divorce in the following ways.

Fault vs No-Fault Divorce: How Infidelity Influences Legal Proceedings

When you file your divorce petition, you must state the grounds (reason) for your divorce.

Every state allows no-fault divorce, so you can choose to file for divorce using no-fault grounds. There is no way for your spouse to contest no-fault grounds, so the divorce process moves immediately to the division of assets and custody.

If you choose to use grounds and file for a fault divorce, you must give the court a reason why you want a divorce. In addition to adultery, this can include abandonment, insanity, imprisonment, cruelty, or inability to have intercourse.

If you use fault grounds for your divorce, your spouse can contest it. This means you will have a grounds trial where you must prove adultery or whatever grounds you allege. To prove adultery, you must have a witness other than yourself who can provide evidence of the adultery.

A grounds trial can be expensive and painful, and it simply draws out the divorce process and highlights the pain of the breakup.

young man using tablet

Property Division

Perhaps the biggest and most complex component of most divorce cases is the division of assets and debts.

All assets and debts accumulated during the marriage are marital property and divided in the divorce.

Each state applies one of two methods for property division:

  • Community property: Nine states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) apply community property laws, which state that all assets and debts acquired during the marriage are split equally (50/50) in a divorce.
  • Equitable distribution: The rest of the states use an equitable distribution model for distributing assets and debts in a divorce. In this situation, assets are distributed in a way that is fair but not necessarily 50/50.

Adultery does not impact the division of assets and debts directly.

However, if one spouse depleted marital assets by using them for purposes that did not benefit the marriage, this can be taken into account, and that amount can be deducted from what that spouse receives.

For example, if a spouse committed adultery and used marital funds to pay for trips, hotel rooms, gifts, and more for the person they had an affair with, the total spent could be deducted from their share of the marital assets.

Keep in mind that most divorces settle without going to trial, and the threat of exposing adultery can provide significant leverage in settlement negotiations.

A cheating spouse may worry about their professional reputation being damaged if the infidelity is exposed and may agree to a property settlement that is more favorable to the other spouse.

Adultery can also impact property division if the couple has a prenuptial or postnuptial agreement with provisions that kick in if adultery occurs. If a spouse has cheated in the past, the couple might include a provision providing a larger property settlement for the innocent spouse if adultery happens during the marriage.

couple arguing

Spousal Support (Alimony)

Spousal support or alimony is frequently ordered when one spouse needs time and education to become self-supporting. It is designed to help them obtain the training and skills required to find adequate employment.

Alimony can also be ordered if one spouse is disabled or elderly. If there is a huge income disparity between the parties, alimony can also help bridge that gap. Alimony is usually ordered for a set period of time, although it is possible to receive lifetime alimony.

Adultery can have an impact on alimony. In Georgia, if a spouse has been proven to be an adulterer, they cannot collect alimony. In other states, such as Florida, the law specifically allows the judge to consider adultery when awarding alimony, but it is not supposed to compensate the innocent spouse for their emotional distress.

Most states' laws allow a judge to consider any factor they deem relevant when determining spousal support, and adultery could fall under that category in some situations.

Adultery can also impact alimony payments when a prenuptial or postnuptial agreement has an adultery clause, providing a larger payment if one spouse cheats on the other.

Child Custody

Child custody is decided based on what is in the child's best interests. Courts have a lot of leeway in making this decision, and most states have a long list of factors that the court must consider.

Adultery could become an issue in a custody case in the following situations:

  • The child was somehow exposed to an inappropriate situation that involved the affair
  • The third party harmed or endangered the child
  • The third party spends time with the child or lives with one parent

The actual adultery itself is not a factor in custody decisions, but the way in which that relationship or person impacts the child is an issue. Any person who lives in a home the child spends time in could be a factor in a custody case, and a new partner is no different.

The question is always about what is in the child's best interests, and if the affair impacts the children, then it is considered.

Final Thoughts

If your spouse committed adultery, you are likely struggling with feelings of hurt and betrayal. Understanding how infidelity impacts your divorce can help you feel more in control of the situation as you move forward with your life.

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