What Counts as Infidelity in Divorce?

Divorce on grounds of Adultery

I get the question ever so often, what difference will it make if I was cheating? Or unfaithful? Or have a new girlfriend/boyfriend? Or have moved in with someone else? Or had an affair?

Things have changed a lot since I’ve been practicing law and adultery doesn’t have the impact that most people think it does on a divorce. But there a lot of factors to consider when we talk to someone about their infidelity. I like to think of adultery on a scale from high and low as far as impact to a case. See if you can guess which number goes with which indiscretion.

Factors to consider when we talk about infidelity in marriage

  1. You bring your paramour, an old high school flame, who you’ve been seeing on the side to your house and have sex in your marital bed while your spouse is out of town.
  2. You and your spouse are swingers but your spouse doesn’t know you’ve been seeing one part of the swing on the side.
  3. You have divorce papers drawn up and have been sleeping in a spare bedroom for the last two years and have sex with a stripper in a one night stand.
  4. You are seeing your spouse’s best friend, who is also married. You’ve gone on vacation as families while you’ve conducted the affair.
  5. You’ve moved out and met someone online and have started having sex with them.
  6. You had an affair during the marriage, told your spouse about it, went to counseling, had sex again, but they never forgave you.
  7. You’ve had multiple affairs, introduced your kids to your paramours and lied repeatedly to your spouse.
  8. You and your spouse have both had affairs, but you are the one who just got caught.
  9. You and your spouse met when you were both married to someone else and now you have had sex with someone else.
  10. a man and woman was caught cheatingYou’re having a baby with someone else while you are married and you don’t know if it’s their child or someone else’s
  11. You are having a baby and there is no way it’s your spouses.
  12. You went to a class reunion and hooked up with an ex. Came home, felt guilty and immediately came clean.

All of these examples are derived from actual cases and being unfaithful can play out in different ways. These are the factors I’ve found that make the most difference.

Other factors that being unfaithful play out in different ways

  1. How long you’ve been married.
  2. How deceitful you were and how much lying you have done.
  3. Was your family affected. For example, did you spend family funds on a new partner?
  4. How many times it happened AND did your spouse know and keep forgiving you.
  5. Did your spouse know and overlook it?
  6. Did your spouse know and have sex with you? (there is the issue of “condonation” which means you’ve forgiven the adultery if you have sexual relations after knowing.
  7. Are you still living together or separated?
  8. Have both of you been unfaithful?
  9. Are there assets in the case or money for spousal support?
  10. Who the Judge is and what jurisdiction and where you are trying your case.

There are so many things that can play into it, I could keep going, but in the interest in writing a blog and not a book, let’s go to our quiz.

1- Is least offensive and likely to be less impactful all the way to the worst at 10.

  • 1 – 10
  • 2 – 3
  • 3. –2
  • 4. 10
  • 5. – 1
  • 6. -1
  • 7. – 3
  • 8. -10
  • 9. -3
  • 10. 3
  • 11. 10
  • 12. 10

You may have guessed, the more offensive the infidelity, the worse it is viewed by the Court. Even with the above examples, each one will have facets that make the adultery more or less important. There is a lot of information to digest about adultery and this is not all of it!

The most important thing is, whether you are the cheater or the cheated, is to hire an experienced divorce attorney who will know how to present the facts to your advantage.


A respected Huntsville family law attorney with more than 20 years’ experience, Leigh Daniel is known for her positive attitude and her skills in the courtroom. She prides herself in the care and compassion that she and her team put into every case. Her goal is to instill a sense of confidence in her clients so they know success is on the horizon. As an author, inspirational speaker, coach, and founder of Project Positive Change, Leigh stays focused on the positive impact she can make on every client’s case.