Proof of Adultery: From the Bedroom to the Courtroom?

Think your spouse cheated? Here is advice on the signs to watch out for and how to obtain proof of adultery.

By  Thomas Dahm
April 30, 2018
spouse in bedroom committing adultery

So you suspect that your spouse has betrayed you and broken your marriage vows.  But how do you confirm your suspicions and prove adultery? And, if you’ve decided that it’s time for a divorce, how do you provide proof of adultery in a way that will stand up in divorce court?

The answer may surprise you, because while there may be enough to convince you that your spouse is a cheater, many forms of “proof” aren’t strong enough to hold up in court. 

Infidelity is common in the United States. Statistically, one or both partners have admitted to having an affair in more than one-third of all marriages. A study published in 2011 in the Archives of Sexual Behavior confirmed that one in five of the 1,000 people in heterosexual couples they interviewed had cheated on their spouses. Another study in May 2015 confirmed this one-in-five number when the polling company YouGov surveyed 1,000 Americans and found that 21 percent of men and 19 percent of women admitted that they had cheated on their partners.

Who are all these people cheating with? According to one source, 36 percent of men and women admit to having an affair with a coworker and 35 percent of men and women admit to cheating while on a business trip. Interestingly, 10 percent of all affairs begin online while 40 percent of the time, these online affairs turn into real-life affairs. Coworkers and the Internet win big time when it comes to infidelity

Signs to Watch for If You're Afraid Your Spouse Is Cheating

  • Your spouse is suddenly more concerned about how they look. They dress better, start going to the gym and taking greater care of their physical appearance.
  • They show a sudden need for privacy, especially with their phone or computer.
  • They become more critical of you and may be more willing to pick fights with you. They may also withdraw and be more distant.
  • They spend more time at the office working nights and weekends or there is unexplained, unaccounted-for time making numerous excuses to not be home. 
  • They get a new credit card or bank account. Or they suddenly begin taking cash out of your bank account for no good reason.

How to Find Proof of Adultery 

Your instinct may well be to snoop through your spouse’s email and text messages. You may also check who they’re messaging on social media. While that may sound like a good idea, be careful! Do not hack into your spouse’s email or social media accounts. In most cases, phone records are protected by privacy laws (depending on the state in which you live), so they often cannot be used as proof of adultery in a court of law anyway. (For more than a decade, the federal Telephone Records and Privacy Protection Act of 2006 has protected phone records. This act makes it illegal to obtain phone records unless you have a court order.)

Secondly, you should know that even if you do manage to catch your spouse messaging their lover, this may not be strong enough to use in divorce court. Yes, you heard that right. Even if you find a text message saying, “Let’s meet at 8 PM” along with some dirty talk, that doesn’t conclusively prove adultery.

“Just because I talk about something, it doesn’t prove that I actually did it,” says New York private investigator Darrin Giglio. “Even if you catch your wife planning an affair, it doesn’t mean she actually followed through with the tryst.”

Even if you see a text message arranging to meet at a specific place and time, that doesn’t prove your spouse actually consummated the affair. “They can always claim they had a change of heart,” says Giglio.  

Giglio says he often tells a story to illustrate this point. “I say that I was on my way to get coffee when another car cut me off. It made me so mad I shot the driver!” Giglio’s listener is usually stunned, until he tells them, “I just claimed I shot someone, but does this mean that I really did it? Of course not!” He says that a video of the act or an eyewitness would constitute real proof.

While a text or email may be enough to convince you, it’s something your spouse’s attorney can easily brush aside in a court of law.

What If You Follow Your Spouse and Catch Them in the Act?  

No matter how strong the urge, don’t do it, advises Giglio. “It can lead to an explosive, dangerous confrontation as well as comprise you getting the necessary evidence you may need in the future,” he says. “Additionally, it can be construed as bias evidence if you are part of the case and not taken as seriously as coming from a non-biased source.”

And be very careful about following your spouse yourself or using a GPS tracking device on their car. “There are different laws such as stalking laws in certain jurisdictions that can get you into legal trouble and have a court case turned around on you making you look negative to the court.”

“The truth is, most people aren’t very good at following someone, it takes years of experience to be successful at covert surveillance,” says Giglio, “It’s better to leave surveillance to a professional.”

Hiring a private detective is a safer and surer way to obtain proof of adultery. A trained detective knows how to conduct surveillance effectively, knows what types of surveillance are legal, and what type of evidence will hold up in court.

“At the end of the day, photos and video evidence can be compelling evidence of cheating,” says Giglio. He added “legally obtained evidence that can be corroborated in court by a non-bias licensed investigator is your best way of presenting evidence for court in your case.”

Video and photo surveillance will always be much more powerful in and out of court than phone records or texts are.

How Professional Surveillance Can Help Prove Adultery

Roger was bored in his six-year marriage to Georgia, especially after their second daughter was born. He felt an irresistible urge for something new and exciting. Soon after his daughter was born, a new executive assistant joined his office team – her name was Anne. Barely in her twenties, Anne was young and vivacious and excited about her new job. It all started with innocent flirting between Roger and Anne, but eventually they had too much to drink at a company retreat and ended up back in her hotel room. Roger tried to pass off the late nights, hidden texts and emails, and secret rendezvous as “working late,” but Georgia was no fool. She had seen the way Anne looked at Roger at the company Christmas party. She confronted Roger but he denied it, telling her that she was just paranoid.

Instead of squashing her suspicions, Georgia called a private investigation service. The PI followed Roger for only two days before he got the proof that Georgia was after. He followed Roger and Anne to a fancy restaurant outside of town where they cuddled and fed each other pasta, then watched as they checked into a cheap motel for a few hours. When the PI presented the video evidence to Georgia, she was unnaturally calm. It only confirmed what she already knew – her husband was cheating. 

Having a private investigator uncover actual proof of adultery was all Georgia needed to immediately file for divorce.

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April 30, 2018
Categories:  Divorce and Annulment

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