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Would Gathering Evidence of Adultery Affect a Divorce Case?


Divorce can be one of the most complex forms of civil litigation in the US just as in any other countries around the world. This is owed to the fact that the truth can be difficult to establish as emotions may be disruptive, tensions may be high, and memories may be clouded. Tensions run especially high when there are allegations or evidence of adultery. Adultery has long been recognized as one of the most serious offenses to a marriage, and the legal system treats it very seriously as a result. The infidelity of this particular nature, however, is usually clandestine, which can make proving it in a court of law arduous and painful. The good news is that hiring a Private Investigator can help according to TIO Square.

Adultery as a Fault Claim for Divorce

As a general rule, divorces in the US must be filed as ‘fault’ or ‘no-fault’. While no-fault divorces tend to be quicker to process (and cheaper as a result), there are instances where spouses – or ‘parties to the divorce’ – are willing to fight it out and pay any additional expenses for a fault divorce. Usually, this is because one or both of the spouses are determined not to let their former partner ‘getaway’ with the blame they perceive, or because a finding of fault in divorce proceedings may have a significant impact on important issues like the division of finances or child custody. Judges require evidence of fault if they are to grant a fault divorce, and this is where matters can become especially complex for divorcing spouses.

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The infidelity of any kind – particularly adultery – is not something that spouses tend to be blasé or forthcoming about. The potential for a considerable emotional upset, extensive familial disruption, and indeed even the commencement of divorce proceedings, are considerations that tend to ensure that the infidelity stays a secret, at least for a period of time. When that infidelity is disclosed or discovered, however, the question for the aggrieved spouse soon shifts from why the infidelity happened to how to prove that it did. In this regard, gathering evidence is absolutely key.

What Evidence is Acceptable? 

Laws vary considerably across the US as to what counts as ‘adultery’ for the purposes of a fault divorce. In this regard, suspicion or presumption of adultery is not enough; there has to be persuasive evidence.

As to the types of evidence that can persuade a judge that adultery has occurred, this is where matters become more complicated. Most parties alleging adultery tend to bring circumstantial evidence as ‘indirect’ proof of the adultery. In these instances, the party presents items like hotel receipts, text messages, phone call records, testimonies as to public displays of affection, and other evidence that implies that the alleged adulterer had both the inclination and the opportunity to engage in extramarital affairs. For many judges, however, these items alone are not sufficient to prove adultery. Instead, the courts require direct proof of the allegation.

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Direct proof is, plainly, the best type of evidence for this kind of allegation, not least because of the high tendency of adulterers to deny – sometimes profusely – their wrongdoing. Unless spouses have already obtained reliable eyewitness accounts (sometimes, even a spouse walking in on their partner with someone is not enough) or photographic evidence, chances are they will require the help of someone else in obtaining that divorce. Given the sensitive nature of the subject and the potential danger that could face individuals trying to obtain evidence themselves, hiring a PI is often the most sensible option for a spouse seeking to prove adultery.

How to Obtain Evidence?

It stands to reason that actually being aware of the adultery takes a spouse considerably closer to being able to secure evidence of it to use in divorce proceedings. Indeed, with 54% of married men and 70% of married women not actually knowing of their spouses’ infidelity, acknowledging the reality of the situation – that adultery has occurred – is an important first step for practical as well as emotional reasons. The precise means by which evidence is obtained, however, will vary appreciably between cases. Undertaking surveillance, tapping phones, locating witnesses, conducting interrogations, using computer forensics – all of these methods are used at various times and better suit some situations over others. Hiring a PI and letting them decide the appropriate means is often the best approach.

What Impact Would the Evidence Have?

The main area in which evidence of adultery affects divorce cases is in determining alimony and asset division. Divorce cases settle the majority of the time (over 90% of cases settle in some states), and during negotiations the aggrieved spouse has the opportunity to claim considerable sums of money, either because marital funds or assets were used to facilitate the adultery or because some adulterous spouses will seek to ‘compensate’ for their wrongdoing by paying their spouses. Negotiations proceed this way particularly when the adulterous party was the sole or main wage-earner.

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There are times when evidence of divorce can also affect child custody arrangements, but it would have to be shown that the adultery in some material way affects the ability of the adulterous spouse to care adequately for the child or children in question.

Hiring a Private Investigator to Help

With the American Psychological Association stating that infidelity accounted for 20-40% of divorces across the US, it is safe to assume that a considerable percentage of the approximately 2.5 million divorces that are processed in the US every year are owed to adultery. PIs, therefore, tend to have a lot of experience in this area and are able to assist divorcing parties with collecting evidence that is both revelatory for the aggrieved spouse as well as accurate and admissible for court proceedings.