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Fault-based Divorce: Adultery

Fault-based Divorce: Adultery

A marriage is a contract that cannot be terminated without the intervention of a court. In its most basic sense, divorce is the legal process that ends the institution of marriage between two people.

Divorce in the United States is a matter of state law. In most states, a marriage can be terminated by an action for divorce, dissolution, or annulment. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. It is the law of the state(s) of the parties’ residence at the time of the divorce, not the law of the state(s) in which the parties currently reside, which governs in divorce cases.

There are two basic approaches to divorce: fault-based divorce and “no fault” divorce. Most states permit a “no fault” divorce on the grounds that the marriage is irretrievably broken. However; a minority of states require that a party establish a ground for divorce, that is, there must be a finding of fault on the other party in order to terminate the marriage.

Adultery and Divorce

There can be various grounds for seeking a divorce; adultery is stated as a reason for divorce in the laws of the majority of states that allow fault-based divorces. Adultery is defined as voluntary, consensual sexual intercourse or sexual activity by a married person with someone other than their legal spouse. While intercourse is usually required, something less may amount to adultery under the divorce laws in some states. One must have sufficient evidence to establish adultery as the stated ground for the divorce. A feeling or a belief that your spouse committed adultery is not enough. Adultery can be difficult to prove and requires supporting evidence from an additional person. It is usually not enough for both spouses to admit that one committed adultery. Adultery must be independently proven as fact.

Adultery as a crime

Adultery is still considered a crime in a number of states. Although these laws are seldom enforced, occasionally a couple will be arrested and charged with committing adultery. Additionally, members of the U.S. military who commit adultery can be charged with a court-martial offense under the provisions of Article 134 of the Uniform Code of Military Justice (UCMJ). In order for the person who committed adultery to be prosecuted, three elements must be proven:

  • The accused had sexual intercourse with a particular individual;
  • At the time of the sexual encounter, the accused was lawfully married to another person; and
  • The accused actions brought discredit to the armed forces or threatened the “good order and discipline” of the armed forces.

If convicted, a serving member of the armed forces can be imprisoned for one year and dishonorably discharged. All pay and allowances will be forfeited.

Adultery and Maintenance

In some states, the issue of a spouse’s unfaithfulness during the marriage can have an effect on the amount of spousal support that is ordered. Additionally, one party’s adultery may also be considered when a ruling is made regarding marital property. In other states, courts do not give any weight to the fact that adultery has been alleged as a basis for divorce.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.