How to Prove Adultery

Preparing to Gather Evidence

Determine why you want to prove adultery. Before the advent of “no fault” divorce, proving adultery was one of the few grounds on which a divorce could be granted. Today, however, couples can simply claim irreconcilable differences and be divorced. Nevertheless, some states allow people to file for divorce immediately if they can prove adultery. If they claim irreconcilable differences, then they may have to wait a period of time (such as six months). Some states still consider marital misconduct when dividing marital property or awarding alimony, but many states no longer do. For these reasons, you should think about why you want to prove adultery. If your state doesn’t take adultery into consideration when dividing assets or awarding child custody, then there may be little reason to expend energy finding proof of adultery.

Read your state law. You should read your state law to see if adultery is considered during a divorce proceeding. You can find your state law by searching the Internet by typing “divorce” or “dissolution of marriage” along with “adultery” as search terms. You also should see how your state defines “adultery.” States can define it differently, and many states refuse to provide a clear definition. Sexual intercourse may not be required. In South Carolina, for example, there is no requirement of intercourse. Instead, sexual intimacy is sufficient. Such intimacy has been found when a married woman shares a cruise ship cabin with another man even though they did not engage in intercourse. Mississippi, by contrast, defines adultery as “voluntary sexual intercourse.” Check to see how your state defines “adultery,” if it provides a definition at all.

Identify the reasons you suspect adultery. Before taking the time to try and gather proof of adultery, ask yourself why you suspect it. Studies show that men who suspect a partner of cheating are correct only 50% of the time. (Meanwhile, women are much more accurate in their predictions—85% are correct when they suspect a spouse is cheating.) Common warning signs of infidelity include: your spouse expresses less interest in sex he or she is away from home an increasing amount suspicious voice mail messages show up on your machine or suspicious receipts pop up in your spouse’s wallet or purse your spouse often wants to go to events or functions alone and is hard to reach when at work there is increased mileage on the car although your spouse does not work far from home

Meet with a lawyer. If you are confused about the weight your state gives to adultery in divorce proceedings, then you should meet with an attorney. An experienced divorce attorney can advise you on whether or not you need to prove adultery. A lawyer can also advise you on the legality of collecting certain kinds of evidence. For example, you can access your spouse’s cell phone records and emails with a subpoena. However, it is illegal to snoop or try to hack into someone’s phone or account. If you hire a lawyer, he or she can properly subpoena the necessary records that can help you prove adultery. To find a qualified divorce lawyer, you should ask friends and colleagues who have gone through a divorce if they would recommend their lawyer. For additional tips, see Hire a Divorce Lawyer.

Understand direct evidence is not required. You do not need to actually catch your spouse in the act with someone else. Instead, you generally need to prove that your spouse had the opportunity and inclination to commit adultery. However, your circumstantial evidence must be sufficiently definite that you can pinpoint the time and place of the adultery. Although you don’t need videotaped evidence of the adultery, you need more than vague suspicions. Testimony that you’ve seen your spouse flirting with someone else at dinner parties is not sufficiently definite to show that your spouse had the opportunity and inclination to commit adultery.

Gathering Evidence of Adultery

Get proof of a romantic relationship. You will have strong evidence if you can show affection between your spouse and another person. For example, the following is solid circumstantial evidence of a romantic relationship: sending or receiving love letters or romantic cards physical contact such as hugging or holding hands kissing an expressed desire to get married spending the night together

Search credit card statements for gifts. You can look through the credit card statements and find expensive gifts that you can’t account for. If your spouse is spending hundreds or thousands of dollars on items but you don’t see them around the house, then you should be suspicious. If you believe that your spouse is having an affair with a woman, then look for purchases made at lingerie stores, women’s clothing stores, or jewelers. Be aware that you can’t open mail unless it is addressed to you. For that reason, you can’t rip open your spouse’s credit card statement and go through it. Nevertheless, if you share an account then you can certainly look.

Go through phone records. If you and your spouse share a cell phone plan, then go through the records and see if he or she is calling someone regularly. You can use “reverse call lookup” services on the Internet to find out if the number belongs to a business or to a person. If your spouse hides the cell phone bill, then you should be suspicious. You cannot open the mail and look at the bill, but you at least have some proof that your spouse wants to hide something. If your spouse throws the bill in the trash, then you can retrieve it. Anything thrown in the trash is fair game for you to pull out and read. Otherwise, you will need to have your lawyer subpoena the phone records. If you think your spouse is calling someone all the time, then let your lawyer know.

Think carefully about installing keylogging software. Keylogging software captures every keystroke made on the computer. It is therefore an excellent way to find out who your spouse is communicating with and what he or she is saying. Again, legal issues arise here because you could be intercepting someone’s communications illegally. If the court finds that you have violated the law when gathering evidence, then the judge will exclude it at trial. Speak to a lawyer if you have questions about the legality of installing keylogging software.

Get eyewitness testimony. People may have seen your spouse kissing someone on the street or disappearing into a building in the middle of the day with another person. You should try to get statements from these witnesses. Although judges will probably discount your own suspicions that your spouse is having an affair, the judge may credit the testimony of third parties. Have the witness write down the day and time that they saw your spouse, as well as the location. Also ask the witness to describe the person that your spouse was with.

Hire a private investigator. You could also hire a private detective to tail your spouse and take pictures. You should not do this yourself. Instead you should look into hiring a bonded private investigator who knows the privacy laws in your state and how to work around them. To find a private investigator, you can ask your lawyer for a recommendation or you can search the web. You may also look in the phone book.

Proving Adultery in Court

File for divorce. You will need to cite adultery as a grounds for the divorce. You can do this by checking the box for adultery on your state’s printed, “fill in the blank” divorce petition. If adultery is not a grounds for divorce, then it will not appear as an option on the petition. Many states have printed forms for divorce proceedings which make a Do-It-Yourself divorce possible. To find the forms, check with the court clerk for the courthouse in the county where you live. However, if you have large assets at stake, then you should probably hire a lawyer, who can draft the petition for you.

Subpoena witnesses. In order to make sure that a witness shows up at your divorce trial, you need to serve them with a subpoena. A subpoena is a legal command for the witness to appear at trial and answer questions. Typically, your lawyer can get subpoenas from the court clerk. Subpoenas must also be served on the witness, either by mail or personal service (hand delivery). You must make sure that subpoenas are served early enough so that the witness has sufficient time to prepare to come to the trial. Ask the court clerk for how much notice you should give.

Create exhibits. Any documents that you want to present in court should be created as an exhibit. In practice, this means that you should provide print-outs of anything that exists on a computer or in digital form. For example, if you want to present emails your spouse wrote, then you should print out the email. Likewise, you should print out photographs or transcribe voicemail messages rather than have the judge look at the pictures on the camera or listen to a tape of the message.

Cross-examine your spouse. The most dramatic part of a divorce trial will be the cross-examination of your spouse. Your lawyer will prepare extensively for it. Once you have presented your circumstantial evidence of adultery—credit card receipts, emails, and photographs—you can expect your spouse to counter with an “innocent” explanation. It therefore falls to your lawyer to show that your spouse’s innocent explanation is actually a fiction. You can help your lawyer prepare for the cross-examination of your spouse by letting your lawyer know your spouse’s weaknesses. For example, he or she might have a short temper if interrupted. Your lawyer can therefore subtly interrupt your spouse constantly on the stand, in the hopes of drawing out an angry response.