Adultery and Divorce

Suing for divorce on grounds of adultery nearly insures a bloodbath.

Adultery is one of the oldest grounds for divorce because adultery was considered the worst possible violation of marriage vows and proof of a marital breakdown. Adultery does not just happen by accident, so at least one of the two spouses had to be responsible for it. Society reinforced its harsh condemnation of this grave moral failing with punitive financial punishment. Sometimes when a third party was named -- a co-respondent, who often was a paramour -- the whole town savored all the details of fallen people who had strayed from the straight and narrow. The just punishment of a roving husband and the vindication of a righteous wife made the divorce into a morality play. When the spouses were socially prominent, the details made for great gossip.

Proving adultery is hard, and it always had been, and doing it in court in public makes for injuries and wounds that never heal. For sure, the parties to adultery tried to keep it secret, but it often became apparent to the aggrieved spouse. And in the old days, sometimes the "other woman" would be named as co-respondent in the divorce action by which an aggrieved wife held her husband accountable for his infidelity. Aside from the emotional damage, proving adultery usually relies on circumstantial evidence that the party (usually the husband, in the old days) had the intent and opportunity, an allegation usually substantiated by such evidence as hotel receipts, photographic evidence, love letters, diaries, and witnesses who, if they exist, often did not want to be involved in the case for reasons that are easily understandable.

In the old days and now, a spouse accused of adultery can admit it, deny it, or do neither, and since it was a criminal offense in jurisdictions like New York, the accused did not have to respond at all because such an admission would be self-incrimination.

The problem of proving adultery created what is called the disposition and opportunity rule. This rule held a presumption of adultery if it could be shown that the two people in question had an adulterous disposition and had the opportunity to commit adultery.

Applying the rule is not as easy as it sounds. An adulterous disposition usually means showing romantic involvement or entanglement of some sort. Love letters or public (or even semi-public, as we shall see) displays of affection are considered evidence of an adulterous disposition. The opportunity to commit adultery means showing that the two people in question were alone for a time in an apartment, hotel room, or house. Basically, the opportunity to commit adultery means the parties in question had the time and the place to commit adultery. Thus, having the keys to the hotel room but no record of being there was not enough for one spouse to prove adultery against the other one.

Before no-fault, the difficulty of proof gave rise not only to a whole range of investigative services but also inventive deception on the part of parties who wanted to divorce.

In the old days, sleazy private detectives who stalked the suspected adulterer worked in conjunction with unsavory divorce lawyers who had reputations for success in these then-difficult, legally taxing cases. This often involved sneaking around hotel corridors and spying on the routine comings and goings of a spouse. Couples turned to inventive deceptions to escape loveless marriages. For example, they routinely divorced collusively, by which one spouse provided the other with the evidence he or she needed to meet the opportunity and disposition rule. The so-called "hotel divorce," as described below, became a divorce theatrical art form.

Most lawyers advise against using adultery even when it is the case and even when it can be proven.

In order to prove adultery, both opportunity to commit adultery and disposition to do it must be shown, and the burden of proof is on the party alleging it.

The problems of proof -- as well as the cost of doing it, financially as well as emotionally -- make it likely that other grounds for divorce, if available, should be alleged instead of, or in addition to, adultery. There are some results that tend to show adultery. For example, if the wife should become pregnant while her husband is away, or if he is sterile, that would be proof of adultery. A sexual disease could be proof of adultery, if it could not have been contracted before the marriage.

Adultery as grounds is not as common as it once was, but some believe that it can be useful in a property settlement negotiation or in a spousal support dispute. Judges still look with disfavor on adultery, and some lawyers believe that proof of adultery may sway a judge. Judges, it should be noted, have heard it all before, and they become inured to sad but repetitive tales of marital breakdown.

Even if the disapproval of a judge confers an advantage, some angry spouses, particularly women (hell hath no fury like a women scorned) use adultery as a way of achieving a moral vindication. In this routine, the scorned spouse has the psychological satisfaction of saying, "Yes, the marriage failed, he was an unfaithful s.o.b., and that’s the reason."

The difficulty here is that outside of her family and maybe some friends, moral vindication does not mean much. The same forces that worked to liberalize divorce eradicated the social stigma associated with marital infidelity. So, many lawyers try to discourage angry spouses from such an approach.

One of the best reasons for not using adultery as a ground is that the allegation means that the divorce often goes to trial, and that increases the cost of the whole dissolution dramatically. That’s where uncontested and no-fault divorce come into play, opening the way for a marital dissolution that while not emotionally painless is at least less expensive.

Furthermore, some believe that alleging adultery is scandalous or shameful and reflects poorly on both marital partners. Some people also believe that only people who are dissatisfied at home stray in search of satisfaction away from home.

A spouse can defend against an allegation of adultery. The three C’s -- condonation, which is the approval of certain behavior; connivance, plotting a secret plan to achieve an evil or illegal end; and collusion, which is a secret agreement between two or more parties for a fraudulent or illegal purpose -- as well as provocation, and the counterattack called recrimination. Provocation means behavior that incites a response. (For example, if the wife sues the husband for divorce, claiming desertion, the husband could claim as a defense that she provoked his absence or desertion. She would be unable to profit by her bad acts.) At one time, any of the three C’s would have been an adequate defense against an allegation of adultery, but each invited people to end run the idea behind fault, particularly in the case of adultery; that is, the moral responsibility for the failure of a marriage.

Pre no-fault era, spouses sometimes resorted to recrimination, in which both parties in a divorce allege adultery. Very often recrimination takes the form of a counter-charge of adultery or cruelty and the naming of a co-respondent.

Needless to say, religious or philosophical beliefs cannot be used as a defense against an allegation of adultery. For a time, the Mormons tried to defend polygamy on grounds of religious freedom. That argument was defeated a century ago. Polygamy is against the law in the United States. Nor is drug or alcohol use an excuse for committing adultery. Drunkenness or a drug stupor might explain the circumstances of the adultery; they do not excuse it. Being intoxicated or drugged does not traditionally help to exonerate the adultery any more than it is an excuse about who caused an automobile accident.

The decision to have an "open" marriage is a decision a couple may well make. In the eyes of the law, adultery is an allegation that one spouse makes against the other. So, if one spouse commits adultery, open marriage or no open marriage, it is still adultery. For this couple, adultery becomes adultery only if and when one of them decides to charge it in a divorce.

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