What If You Don't Admit to Adultery in a Divorce Case?
By Elizabeth Rayne, J.D.
Updated March 19, 2020
Deciding whether to admit to adultery during divorce proceedings is a personal decision, and one that ultimately, will not affect your ability to get a divorce. On the one hand, if you admit to adultery, you may speed up the divorce process, and you won't have to defend suspicious text messages or emails in court. On the other hand, state laws may favor the innocent spouse when it comes to the divorce settlement – meaning, that you may lose out on alimony or marital property, if you admit to having an affair.
Grounds for Divorce
While the particular grounds for divorce differ by state, all states now allow no-fault divorce -- meaning that you do not have to place blame on your spouse for the marital breakdown. Instead, you may divorce based on irreconcilable differences. Neither spouse has to admit to adultery, nor prove that the other spouse committed adultery, to obtain a divorce. Some states, such as New York, require spouses to live separate and apart for a specified period to obtain a no-fault divorce. If you file based on adultery, you will not be subject to this waiting period. Some states like California do not even offer adultery as grounds for divorce, so whether a spouse admits to adultery may be irrelevant.
If your spouse is set on filing for divorce based on your adulterous behavior and you do not admit to it, she may provide evidence to prove your affair. Such evidence includes bank statements, emails, text messages, phone records and even social media postings. If you want to avoid the embarrassment of having your private activities brought up in the courtroom, you have the option of admitting to the adulterous behavior.
Effect on Divorce
Depending on the laws of your state, if you admit to adultery -- or your spouse proves adultery -- it can affect the terms of your divorce decree. For example, in South Carolina, a spouse who commits adultery is usually barred from receiving any alimony. In some other states, the adulterous spouse may receive less marital property in the divorce settlement than she would otherwise be entitled to. The unequal distribution of property may not punish the adulterer per se, but instead, it should compensate the innocent spouse for benefits she would have received, if it weren’t for the affair destroying the marriage.
Defenses to Adultery
In some cases, even if you do admit to adultery, you may have certain defenses to prevent your spouse from using adultery as grounds for divorce or to argue for a more favorable divorce settlement. Generally, if your spouse condoned or consented to the affair – or, has forgiven you on the condition that you would not cheat again -- you may have a valid defense. Because defenses to adultery can be highly fact-specific and complicated, you may consider hiring an attorney.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."