Can adultery become an issue if the divorce is overturned?
Yes, it could become an issue under some circumstances, especially in states with fault divorce or if you or your spouse previously lied about adulterous acts, but you or your spouse can now prove they had occurred during the course of the marriage. It also matter when the adultery is said to have occurred. Acts occurring after the original divorce, but before the overturning usually will not matter. However, they can in some cases.
Overturning a Divorce
While it is rare for a judge to overturn a divorce decree, it is not impossible or outside the letter of the law in any state. The reasons vary, but they can include incorrect financial information, fraud by either party, previous undisclosed infidelity, improper notification of a spouse, and cases involving extreme and proven duress. However, most judges will attempt to amend a divorce decree if possible before annulling the divorce.
Keep in mind there are statutes of limitations for overturning and appealing a court’s original decision in regards to divorce. These vary widely, but on average, they range from 60 days to two years. Again, it depends on the reason, which might or might not have to do with adultery. If your divorce is overturned, it is as if the divorce never happened and you are once again married. This includes the annulment of any financial agreements or asset division. Any adultery occurring after your divorce annulment is admissible against you or your spouse in court with proof in a new fault divorce.
What Does the Law Consider Adultery?
Each state has its own laws regarding what is or is not adultery. Law dictionaries narrow the definition of sexual acts with someone who is not your spouse. However, you should consult with an attorney or your local laws to learn what your state legally considers adultery. Many laws now include non-sexual but intimate behaviors, such as kissing or dating.
Proving Adultery After an Overturned Divorce
You or your spouse must prove adultery in a fault divorce. If you or your spouse has already moved on, proving adultery is much easier for the other party if you have remained civil or still speak with the family. This can be witnesses, bank records and transactions showing the movement of marital funds, videos, pictures, and written correspondence—including e-mail and text.
How Does Adultery Play a Role in a New Divorce?
In most states, you or your spouse can file a fault divorce based on adultery, even if the previous divorce was a no-fault. A fault divorce removes the need for lengthy, state enforced separation times, and it can help a spouse obtain more financial support as well as marital assets from their partner.
Even in states without fault divorce, adultery can become an issue. Anything divided or decided in the original divorce would now be null. Any money from marital property or assets that were or have been used in the acts of adultery can pose an additional problem. This can include money spent on basic living expenses if the adulterer is living with or providing housing for another person with marital funds, including anything purchased with marital funds or gifted marital assets and property.
If the adultery occurred at any time before the original divorce was filed and it was purposely hidden from the court, not only does that become grounds for overturning a decision, but it is fraudulent to knowingly and willingly lie to the court. This too can be admissible during a new divorce. Adultery can also void a pre or post-marital agreement and change the terms of a new divorce. This might be one reason a spouse wishes to hide their adulterous affairs from the court, but it can also cause issues when a divorce is overturned if adultery is clearly outlined in the marital agreement.
What Can Be Done to Protect Yourself?
Aside from not dating and dissolving active romantic relationships as soon as your divorce is overturned, you or your spouse can refile for a fault or no fault divorce or obtain a new, legally binding separation agreement stating that you’re both free to pursue new relationships without risk of adultery.
If you are both currently involved with someone else, it is unlikely adultery will matter unless one of you uses marital property or money in a proven adulterous act. However, since your previous divorce settlement is now also void, proving separate and marital property and assets is another hurdle that you will both face again.
Many judges will consider your overturned decision and its reason when approaching your new divorce case. Every case is different, and what one spouse will or will not do is impossible to determine. If your divorce case has been reopened, you should prepare yourself for the possibility of the decision being overturned. If your decision has already been overturned, you have ways to protect yourself from a fault divorce or accusations of adultery.
What is needed to prove adultery?
When someone has a sexual relationship with a person other than the spouse, then that person has committed adultery. If you believe that your spouse has committed adultery, there are a few elements that go into proving that the act occurred when you go to court. Even though your emotions might take over your good judgment, it’s important to remember that if you retaliate in a negative manner, then it will make you appear in a negative light when you go to court if you choose to go to court over the incident. Your actions should also be taken into consideration if you plan to file for a divorce. An attorney can advise you about your options for filing for divorce and what you might be able to receive regarding financial support from your spouse.
There are several different reasons as to why couples can file for divorce, such as irreconcilable differences. If you are able to prove that adultery has occurred, then some states will grant an immediate divorce instead of making you wait for the one-year period that is the most common length of time to wait after a separation has been filed. Adultery can sometimes play a role in awarding alimony or in the division of marital property. Talk to an attorney about whether adultery is considered when alimony is awarded because it might not be worth your time and effort to show that the act took place.
Read all of the state laws as some states have different regulations than others regarding the evidence that you need to provide and the statute of limitations if you discover that adultery has been taking place for an extended period of time. Some states have different definitions of what adultery means, so it’s important to understand what constitutes the act and what should be ignored. In some states, a spouse doesn’t have to engage in a sexual relationship to commit adultery. Sexual intimacy is often proof enough of adultery. An example would be if a woman were to share a room with a man she is not married to but has an intimate relationship with of some kind.
Think about why you think that your spouse has committed adultery and the reasons behind the act. Women are often more accurate in their beliefs that cheating in a marriage is taking place while men aren’t as accurate. Some of the signs that adultery might be taking place include a lack of interest in sex, spending more time away from home and using odd excuses to explain the time away, receiving strange phone calls, and going to events alone instead of as a couple.
When you have the proof that you need to make an accusation, take your information to an attorney so that the proper documents can be filed. There are times when you can access your spouse’s emails as well as cell phone records to determine if any kind of relationship outside of the marriage is taking place. There usually isn’t a requirement to catch your spouse in the act of committing adultery. You only need to show that your spouse had the ability and desire in most situations. Most courts do require that you provide more than just a thought or suspicion that adultery is taking place. If there is any kind of proof that shows your spouse has been affectionate with another person, then this will be beneficial when you go to court. Examples include sending or receiving romantic letters or cards, kissing another person, or sharing a bed together. Explore credit card statements to see if there have been any purchases that could be romantic gifts for another person. You can also see whether there have been charges to a hotel room or another location that might be a place where your spouse has met someone else. Keep in mind that you can’t open mail that isn’t addressed to you, but you can take pictures of the mail to give to your attorney if there is anything suspicious. In some states, you can’t look through credit card statements unless you are an authorized user on the account, so keep this in mind when you begin looking for information. If there is anything thrown in the trash, then you can view it because it’s fair game for anyone to read. This is when you can further explore phone records and other information that your spouse might want to hide. If there are any legal concerns, leave the activity to your attorney before going to court about adultery suspicions.