What counts as evidence to prove adultery?
My wife is cheating on me, and I have found her underwear that appears to have sperm from another man on it.
If a DNA test proves the infidelity, is this enough to show cause?
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on New Jersey divorce laws where I am licensed to practice.
Adultery is defined as “an act of sexual intercourse by a married person with another person other than one’s spouse.”
Adultery is proven by establishing opportunity and inclination. This is normally established through the testimony of a third-party witness (i.e., private detective, neighbor, or colleague) and is usually based on circumstantial evidence.
To prove opportunity, a witness would need to testify that he/she saw the couple enter a place, such as a hotel or home, where they are alone and could have sexual relations. Inclination means that the witness observes the couple behaving affectionately towards each other, such as kissing, holding hands, etc.
You indicated that you may have DNA evidence of your wife’s infidelity. If that is the case, you will need the forensic scientist or whoever performed the DNA testing of the sample you provided to testify in court about his/her findings.
Note that in some states you may not testify against your spouse, and thus will need the testimony of a third party to corroborate the adulterous relationship.
Further, in order to file a complaint for divorce alleging adultery, your wife’s paramour or boyfriend must be named as a co-respondent in the divorce complaint. Therefore, you must be able to identify him and serve him with a copy of the complaint.
Proving adultery can be time consuming and costly. Moreover, marital fault is not a factor in some states when it comes to determining issues such as alimony or equitable distribution of property.
Therefore, you may want to consider filing a divorce complaint based on a “no-fault” cause of action, which is less costly and time consuming, if you and your divorce lawyer feel the consequences of proving marital misconduct are not significant enough to warrant pursuing a fault-based action.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.