Adultery: What Proof Do I Need?

Proving that your spouse has committed adultery is easier than you think.

I have previously discussed that a divorce is a civil lawsuit, just like a lawsuit for someone injured in an auto accident.  It must be understood in that context.  Like any other suit you have a “Plaintiff” and a “Defendant.”  The Plaintiff  in an auto accident case is the one injured and the defendant is the person alleged to have caused the injury.

In a divorce, the plaintiff is the spouse who desires a divorce.  If both want a divorce there will be “cross pleadings” naming the original plaintiff as a “counter defendant” and the defendant as a “counter-plaintiff.”

The plaintiff brings a “cause of action” in divorce.  If the cause be just and proven; the plaintiff is entitled to “relief.”  In an accident case the relief is almost universally money.  The principal relief sought by a divorce plaintiff is to be granted a divorce from the defendant.  Money issues, custody issues, and property issues may be included in that divorce..

In the foregoing example of an auto accident, the plaintiff will have to prove that the driver operated his car negligently before the plaintiff can be entitled to his relief.  That is called the plaintiff’s “grounds.”  There are many other grounds upon which you can sue someone such as battery, fraud, breach of contract etc.

Adultery is immediate grounds for an absolute divorce

The Maryland Annotated Code, Family Law Volume (2012) sets forth a series of “grounds” that will entitle a plaintiff to an absolute divorce.  Among those grounds is “Adultery.”

Md. FAMILY LAW Code Ann. § 7-103  (2012)

§ 7-103. Absolute divorce

(a) Grounds for absolute divorce. — The court may decree an absolute divorce on the following grounds:

(1) adultery;

(2) desertion, if: (omitted)

(3) conviction of a felony or misdemeanor, (omitted)

(4) 12-month separation, (omitted)

Grounds for divorce based upon adultery are the only practical grounds which will entitle the aggrieved spouse to an immediate divorce.

Theoretically the parties to a divorce case, which is grounded upon adultery, could be divorced in days, weeks or even 24 hours.  Mind you, these fast track divorces are only a possibility where everybody signs all the necessary paperwork, with releases all the way around and bring a corroborating witness to the adultery.

That level of cooperation is rare.  Many, if not most, divorces granted upon adultery are not uncontested matters.  When a spouse has committed adultery there is often neither admission  on the part of the spouse who cheated nor closure for the innocent spouse.  Many of those cases become contested trials.

What do you need to prove adultery?

So, what do you need to prove entitlement to a divorce grounded upon adultery?  That is a question I have been answering for over 18 years.  The answer surprises most people and the answer is “not as much as you might think.”

The legal standard to prove adultery, in Frederick or elsewhere in Maryland, does not require juicy and theatrical evidence, such as pictures through the peephole.  I can count on one hand the number of adultery cases I have handled where the Hollywood style proof of adultery was presented.  The truth is, it’s just not usually necessary.

The Maryland appellate courts are our highest Maryland courts.  They set the rules for the family law courts to follow.  Those high courts acknowledge that the act of adultery is “clandestine by nature”.

For the foregoing reason, the vast majority of successful adultery claims are considered to be proven if the Plaintiff can merely demonstrate that: the Defendant had a “disposition” of affection toward the suspected paramour and had the “opportunity” to act upon that disposition of affection.  Proof of these two elements are sufficient for a court to find an adultery has occurred.

Disposition: means you have evidence that the cheating spouse and the person whom you suspect of adultery have a “disposition” of affection between each other.  An example would be someone who saw them, kissing, hugging, holding hands, dirty dancing etc.

The second element of adultery is proof that the cheating spouse had the “opportunity” to act upon that disposition toward affection.  An example would be spending time alone in the same hotel room, closet, pup-tent or anywhere else that two consenting adults might engage in what is described by the latin: en flagranti delecto.

There are other forms of proof that come along and don’t require much courtroom drama.  I have been involved with several cases where a pregnancy or the presence of sexually transmitted diseases (STDs) proved sufficient for the judge to grant the plaintiff a divorce based upon adultery.

So, you don’t need to spend a small fortune on private investigators or spend countless hours torturing yourself by following your spouse around, reading your spouse’s email, texts, cell phone records etc. all just to determine whom she/he is sleeping with.  Besides, too much digging has its pitfalls.

In my experience, spending time and effort trying to uncover evidence of adultery is far more likely to expose you to a trumped up restraining order than it is  to be of any benefit in your divorce case. When people go overboard trying to collect evidence of adultery, they unwittingly create an environment where the cheating spouse may be able to prove spying on them, stalking them etc.

After all these years as a Frederick Maryland divorce and custody lawyer, I have come to firmly believe in the following adages: “If you think your spouse is chaste, you may be right.  If you think your spouse is cheating, you are definitely  right.”  Another appropriate maxim to consider when presenting adultery evidence is that:  The truth is always limited to “what you can prove.”

The Divorce Place

Divorce Law

322 E Patrick St, #101
Frederick Maryland

240 575-9298