Should I Admit to Adultery in Divorce?

Should I Admit to Adultery in Divorce?

If you have committed adultery and you are asked about it during the court process, then yes, you must admit it to the judge because you must always be truthful during the litigation process and in the court. Now, know that admitting to adultery can lead to consequences depending upon whether:

  • You are involved in a no-fault divorce
  • You are involved in an at-fault divorce
  • Your pre-nuptial agreement contains infidelity clauses
  •  Adultery is considered a crime in your state

Admitting to Adultery in a No-Fault Divorce

If your spouse has filed a no-fault divorce case, it means that he/she does not have to allege and prove any marital wrongdoing. He/she has to just state in the divorce petition that there are irreconcilable differences in the marriage, the marriage has irretrievably broken down, or that the spouses are incompatible – and that is why he/she wants to terminate the marriage.

Since there is no need to raise the issue of infidelity in a no-fault divorce, the chances of you being asked to admit to adultery are very low. Even if this issue somehow raises its head, your admitting to marital wrongdoing (adultery, in this case) may usually not affect alimony, property division, child custody, and child support issues. However, in rare cases admitting to adultery may earn for you courts’ disfavor in the following situations:

  • If you admit to adultery and your spouse proves that your infidelity has harmed your children, then the courts can rule that your affair caused direct harm to the children. The courts may then grant primary or sole custody to your spouse, or generally award child custody arrangements in your spouse’s favor. For example, if you took your children to meet your new romantic partner on a few occasions, or had an affair with the kid’s teacher, it may emotionally harm the children, and the courts will consider it as a case of direct harm. Remember that no matter what, the courts will always decide custody in the best interests of the child.
  • If you admit to adultery and your spouse proves in courts that you have dissipated large sums of marital funds on the affair (for example, buying gifts for or vacationing with your new romantic partner), then the courts are likely to help your spouse recover the wasted marital funds by giving him/her a higher share of the marital property.
  • If your affair forced your spouse to separate and he/she was financially dependent on you, or if the separation made your spouse financially unstable, then the courts may award higher alimony to your spouse.
  • The courts can also order higher alimony if they find that your adultery caused considerable emotional trauma to your spouse.
  • If you had an affair when you were already separated from your spouse and did not expose your children to your new partner, then your affair may not have any impact at all on your case.

Admitting to Adultery in an At-Fault Divorce

If your spouse has filed an at-fault divorce case, and one of the marital wrongdoings she has alleged is adultery, and you have admitted to it, then the courts, aside from awarding the divorce decree, can:

  • Award your spouse higher alimony if your adultery made him/her financially unstable or caused significant emotional trauma.
  • Award a child custody arrangement favoring your spouse if your affair caused direct harm to the children. If the allegations against you are serious, the courts may grant sole or primary physical and legal custody to your spouse and/or severely restrict your visitation rights.
  • Award your spouse a higher share in the marital property if you had spent a significant amount of money on your new romantic partner.

Infidelity Clauses in Your Prenuptial Agreement

If your prenuptial agreement contains infidelity clauses that mention specific damages for adultery, then the terms of the prenuptial agreement supersede your state’s divorce laws. When you admit to adultery, financial damages and penalties will be levied on you according to the terms of the agreement. Note that a prenuptial agreement cannot include child custody matters.

Is Adultery Considered a Crime in Your State?

Aside from your infidelity impacting alimony, property division, and child custody matters, your spouse may also charge you criminally if adultery is considered a criminal offense in your state. At the time of this writing adultery is considered a crime in 16 states.However, such criminal cases are rarely, if ever, filed.

Adultery is a betrayal of trust that can wreck a marriage and its legal and financial consequences can be severe if an inexperienced attorney is unable to disprove or defend the charges against you in the courts. So, it is recommended that you work with an experienced and reputed family law attorney who has successfully defended such cases in the past.

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About the Author: Marco Brown
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Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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