How to Prove Your Spouse is having an affair in court

Know why you should prove your spouse is having an affair. Adultery is often a valid basis for divorce. ^[4] So, if you believe your husband has cheated on you and you want a divorce, you may need to prove their adultery to complete legal proceedings. In many states, if you file for divorce without specifying which party is at fault, you will have to wait a year before you can finalize the divorce papers. ^[5] However, if you are filing for divorce on the basis of fault, that is, for divorce on the grounds of adultery, you can file immediately. ^[6]

Understand the consequences of committing adultery. If your husband is guilty of adultery and you can prove it in court, some states will consider this information when deciding alimony and division of property. ^[7] In some states, if you can prove your spouse is having an affair, they will not be able to receive any alimony. ^[8]

Know what to prove. Proof of infidelity is often difficult to find because of the secretive nature of the behavior (meaning you usually don’t openly cheat for everyone to see). ^[9] In addition, committing adultery does not necessarily mean that your husband has sex outside of marriage, but it also means that he has an intimate relationship. ^[10] Therefore, most courts do not require proof of the act of adultery itself. Instead, they ask you to demonstrate:

• First, your husband intends to commit adultery. ^[11] Intention is defined as the tendency to act in a certain way. ^[12] In this case, it was the tendency to act in an adulterous manner.
• Second, your husband has the opportunity to commit adultery. ^[13] Chances of committing adultery mean that your husband has the time and ability to commit adultery in a given situation. ^[14]

Use direct evidence. If you have direct evidence, i.e. eyewitness accounts or photographs of the act of adultery, then you can prove adultery. ^[15] However, direct evidence is often difficult to find because cheating spouses leave little traces and often act in secret. ^[16]

• In South Carpina, the courts acknowledge this difficulty and, like most states, do not require direct evidence to convict. ^[17]

Use indirect evidence. Surely you must prove adultery by circumstantial evidence, that is, using certain evidence to make inferences. ^[18] Indirect evidence should be able to demonstrate:

• Your husband has the opportunity to have an affair, for example the opportunity to be alone with other people; and
• Your husband intends to commit adultery, which means that with the above situation, adultery is likely to have occurred. ^[19]

Think of other possible explanations. In court, if your husband has a reasonable explanation for the act you are alleging adultery, he or she may not be on your side. ^[20] So, before you file for divorce on the basis of infidelity, make sure your husband has no reasonable explanation for the action you believe might constitute adultery crime.

Be careful not to condone adultery. If you engage in actions that could be considered tolerating adultery, the court will not allow you to use adultery as a basis for divorce. ^[21] If you and your husband settled down after you found out he was having an affair, you probably wouldn’t be able to use that as a basis for a divorce. ^[22]

• Forgiveness and/or reconciliation can be understood as when you return to live with your husband or write him a letter of forgiveness. ^[23]

Search for letters, messages or emails. Letters, texts or emails are very good evidence that your husband intends to commit adultery. ^[24] This evidence should contain information about the adultery he is engaged in. For example, text messages about times when your husband was with someone else, and other people’s letters mentioning that they love your husband and are happy that the two of them are together. These letters must contain love content. ^[25]

Try to find proof of online dating. If you have proof that your husband has signed up to online dating sites like Tinder, match.com or any similar site, you should keep that proof and present it to the court at the appropriate time. ^[26]

Hire a private detective. If you are unable to find evidence on your own but think your husband may be having an affair, you should hire a private investigator to gather evidence. ^[27]

• The private detective will try to take pictures and find other evidence of his adultery. ^[28]

Ask for information from friends and family. In many cases of infidelity, friends and family may know something is going on before you know it. ^[29] If you think something out of the ordinary is going on, ask them. Although they may know your husband is having an affair, they may not have evidence to support that claim. Their information does help, but it’s best that they have evidence to back up that claim.

Find your spouse’s confession. If your husband admits to having an affair or having an affair, you can use this confession as proof. Ideally, he’ll confess by text or email, as you’ll have tangible proof of the conversation.

Request for records. If you are participating in court proceedings, you can ask for bank records, online records, hotel records, and other records that may provide evidence of adultery. ^[30] You cannot request records from parties to a divorce, so you should ask for records directly from a bank or hotel. ^[31]

Know the standard of evidence. When you go to court, you need to prove adultery by providing “more convincing evidence”. ^[32] This is the type of evidence that can substantiate the claim you are claiming. ^[33] Generally, you have to convince the judge that adultery is more likely than not (i.e. 51%). ^[34]

Understand that your husband has no burden of proof. In court, your husband has the right not to press charges against him, which means he doesn’t need to prove his innocence. ^[35] The court will also not consider him to have committed any wrongdoing if your husband does not prove his innocence. ^[36] So don’t rely on your husband’s justification for adultery.

Find witnesses in court. If you have had the support of friends, family, or a private investigator, ask them to testify publicly in court. They will testify to what they have seen with their own eyes and make them believe that adultery has occurred.