How to Prove Your Spouse's Infidelity in Court

Determine whether you need to hire a lawyer. Hiring a lawyer to prove infidelity in court may be necessary for several reasons, but it can also be a burden. Consider the following factors when deciding whether to hire a lawyer:

• If your spouse has openly admitted to infidelity, a lawyer might only hinder honest and open communication about resolving issues. Without a lawyer, the responsibility of providing evidence to the court about your spouse's infidelity falls entirely on you.
• If you have direct evidence of infidelity and need to draft or file legal documents, hiring a lawyer is advisable. If your spouse denies the allegations, disputes may arise during divorce proceedings over custody, property rights, and/or finances. In such cases, a lawyer can help prepare legal arguments to ensure you receive a fair share of assets. You should also hire a lawyer if you lack the time or expertise to gather credible evidence.

Research potential lawyers. If you decide to hire a lawyer, start by identifying potential candidates. Follow these steps to choose the right one.

• First, ask friends, family, and colleagues for recommendations. This is an excellent way to find a skilled lawyer, provided the recommender is trustworthy. If no one you know can recommend a family law attorney, search online on platforms like lawyers.com, nolo, or findlaw. These websites are reliable sources for finding qualified lawyers.
• Second, once you have a list of candidates, contact them and schedule an initial consultation. This meeting is your chance to learn more about the lawyers. Ask plenty of questions about their experience and how they would handle your case. Be prepared to pay a consultation fee, which typically ranges from $50 to $500 (in the U.S.).

Select the right lawyer. After meeting with top candidates, narrow down your choices to those who left you with the most questions. Ultimately, choose the lawyer you feel most comfortable working with. Look for someone with reasonable fees, a solid track record in family law cases, and a reputation for honesty and integrity.

• If hiring a lawyer seems too expensive, consider finding one who will take your case pro bono (without charging). Contact your state or local bar association to help you find a free lawyer. Additionally, many nonprofit legal aid organizations may be able to assist you.

Understand why proving adultery matters. Adultery is often a valid ground for divorce. If you believe your spouse has been unfaithful and you want a divorce, you may need to prove their infidelity to complete the legal process. In many states, if you file for a no-fault divorce, you may have to wait a year before finalizing the paperwork. However, if you file for a fault-based divorce, citing adultery, you can proceed immediately.

Know the consequences of proving adultery. If your spouse commits adultery and you can prove it in court, some states will consider this when deciding on alimony and asset division. In certain states, proving adultery may disqualify your spouse from receiving any alimony.

Understand what needs to be proven. Evidence of adultery is often hard to obtain due to the secretive nature of the act (meaning it’s rarely done openly for others to witness). Additionally, adultery doesn’t always mean your spouse had a physical affair; it can also refer to an intimate emotional relationship. Most courts don’t require direct proof of the act itself. Instead, they require you to prove:

• First, your spouse had the intent to commit adultery. Intent refers to the inclination to act in a certain way—in this case, the inclination to engage in infidelity.
• Second, your spouse had the opportunity to commit adultery. This means they had the time and ability to engage in infidelity in a specific situation.

Use direct evidence. If you have direct evidence, such as eyewitness accounts or photos of the act, you can prove adultery. However, direct evidence is often hard to come by because adulterous spouses rarely leave traces and usually act in secrecy.

• In South Carolina, courts recognize this difficulty and, like most states, do not require direct evidence to establish guilt.

Use circumstantial evidence. You’ll likely need to prove adultery using circumstantial evidence, which relies on inferences drawn from indirect facts. Circumstantial evidence must demonstrate:

• Your spouse had the opportunity to commit adultery, such as being alone with someone else; and
• Your spouse had the intent to commit adultery, meaning that under the circumstances, infidelity likely occurred.

Consider alternative reasonable explanations. In court, if your spouse provides a reasonable explanation for the behavior you’re alleging as adultery, the court may not rule in your favor. Therefore, before filing for a fault-based divorce citing adultery, ensure your spouse cannot offer a plausible explanation for the actions you believe constitute infidelity.

Avoid condoning the adultery. If you engage in actions that could be seen as condoning the adultery, the court may not allow you to use it as grounds for divorce. If you reconcile with your spouse after discovering their infidelity, you may lose the right to cite adultery as a basis for divorce.

• Forgiveness and/or reconciliation can be interpreted as returning to live with your spouse or writing a letter of forgiveness.

Look for letters, messages, or emails. Letters, messages, or emails are strong pieces of evidence to prove your spouse’s intent to commit adultery. These should contain information about the infidelity they are involved in. For example, messages discussing times your spouse was with someone else, or letters from the other person expressing love for your spouse and happiness about their relationship. The content should be romantic in nature.

Search for online dating evidence. If you have proof that your spouse has registered on dating platforms like Tinder, match.com, or any similar sites, preserve this evidence and present it to the court at the appropriate time.

Hire a private investigator. If you cannot gather evidence on your own but suspect your spouse is being unfaithful, consider hiring a private investigator to collect proof.

• A private investigator will attempt to take photos and gather other evidence of your spouse’s infidelity.

Ask friends and family for information. In many cases of infidelity, friends and family may know something is happening before you do. If you suspect something unusual, ask them. While they might know about your spouse’s infidelity, they may not have concrete evidence to support their claims. Their information can be useful, but it’s best if they have evidence to back up their statements.

Seek a confession from your spouse. If your spouse admits to being romantically involved with someone else or committing adultery, you can use this confession as evidence. Ideally, the confession should be in the form of a message or email, as this provides tangible proof of the admission.

Request records. If you are involved in court proceedings, you can request bank records, online records, hotel records, and other documents that may provide evidence of adultery. You cannot request records directly from the other party in the divorce, so you should request them directly from the bank or hotel.

Understand the standard of proof. In court, you must prove adultery by providing "clear and convincing evidence." This type of evidence must strongly support your claim. Generally, you must convince the judge that adultery is more likely to have occurred than not (i.e., a 51% likelihood).

Know that your spouse is not obligated to prove their innocence. In court, your spouse has the right to remain silent, meaning they do not have to prove their innocence. The court will not assume any wrongdoing on their part if they choose not to defend themselves. Therefore, do not rely on your spouse’s defense to prove adultery.

Call witnesses to testify in court. If you have received assistance from friends, family, or a private investigator, ask them to testify publicly in court. They will provide testimony about what they personally witnessed, which can help establish that adultery occurred.

Submit documents as evidence. In addition to calling witnesses, you can also submit documents as evidence. To use documents as evidence, you must follow your state’s rules of evidence. If the evidence is accepted, you can present it to the judge as proof of adultery.