FAQ: Divorce

Adultery

In more than 20 states, adultery remains a crime for which one can be prosecuted by the local district attorney. Although few people are prosecuted under those state laws, the laws do remain on the books and occasionally district attorney offices will bring criminal adultery charges against a citizen. Generally, the statutes provide that punishment will be some jail time or a fine. Most cases plead out, however, and the most severe consequence to the "criminal" is the embarrassing publicity. Some commentators believe that if a person prosecuted under a state's anti-adultery law were to take the case to the Supreme Court, anti-adultery laws may follow the route of the anti-sodomy laws declared unconstitutional in 2003 by the Supreme Court.

Adultery and the military

While the Code, which regulates the behavior of military personnel, does not specifically outlaw adultery, it does prohibit, "all disorders and neglects to the prejudice of good order and discipline in the armed forces [and] all conduct of a nature to bring discredit upon the armed forces . . . ." Many individuals in the military have been disciplined based on this provision, even recently, despite arguments that, like state laws against adultery, it is often applied unevenly and in a way that does not necessarily promote "good order..."

Adultery as grounds for divorce

Until about 50 years ago, when states began to pass "no-fault" divorce legislation; those wishing to obtain a divorce were required to prove the facts that would establish a legal basis, or "grounds" for divorce under state statutes. While most states provided that abuse or abandonment as well as adultery could constitute grounds, in some states, adultery was the only legal grounds for divorce. Since the 1950's, most states have passed "no-fault" divorce laws, repealing laws that required a proof of a spouse's wrongdoing prior to allowing divorce. Some states, however, passed "no-fault" laws while retaining the "fault" provisions, allowing a party to choose between filing for a "no-fault" divorce and actually naming the wrongdoing under the old "grounds."

Adultery as cause for divorce

While adultery is often cited as the cause of divorce, many mental health professionals disagree, and contend instead that adultery is just one symptom of a failing marriage. In fact, some studies show that the majority of marriages affected by adultery would have ended in divorce regardless of whether the adultery occurred, and that the adultery was not reason for the marriage ending in divorce. On the other hand, surveys also show that many whose spouses have cheated on them feel that the adultery had an extremely deleterious effect on the marriage. In addition, while the spouses do not divorce, the marriage is often extremely unsatisfactory for either of them.

From adultery to happy marriage with a new spouse?

Scientific studies have yet to be done on whether couples who start out together as adulterers, (either one or both was married to someone else), actually get married, then stay together. However, anecdotal evidence testifies strongly against the likelihood of success. In addition, studies have shown that 85% of marriages entered into in the first two years after divorce end in failure. Add to this the fact that mental health professionals contend that a relationship that grows out of the betrayal and secrecy is quite likely to have trust and commitment issues, and you likely have a combination that is not going to work in the long-term.

Saving Marriage?

Numerous groups, both faith-based and secularly derived, have established programs with the mission of saving troubled marriages. One example is "Marriage Encounter," a program that was initiated decades ago in the Catholic Church and has spread to other denominations. The Marriage Encounter model utilizes peer relationships and both couples-only and group work to help couples re-commit to their marriage. Many couples attest that they have healed, even from the emotionally devastating consequences of infidelity, and gone on to help others do the same.

Conclusion

In nearly every culture, adultery has been considered a "wrong," sometimes only morally and ethically, but often even criminally. These attitudes certainly continue to exist in the United States today as evidenced by some state laws continuing to criminalize adultery, other state laws that allow petitioners in divorce actions to cite adultery as legal grounds for the action, and military law which gives rise to disciplinary action against military personnel who have been found committing adultery. It is no wonder that a marriage can be so negatively affected by adultery. Many people, however, believe that with the commitment of the parties and assistance from others, their marriage can be put back together.

Copyright © 1994-2006 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Back to Main
View Previous Months' Selections