I Discovered My Spouse Is Having an Affair—Now What?
Finding out your spouse has been unfaithful is an emotionally devastating experience and often leads to the decision to file for divorce. While adultery is a legal ground for divorce in Arkansas, it is not commonly litigated due to its complexities and the limited benefits it offers in most cases.
Proving Adultery as Grounds for Divorce
To prove adultery as grounds for divorce, you must provide evidence that the affair (and actual sexual relations) occurred after your marriage began and before you filed your divorce complaint. This evidence must be corroborated by testimony from individuals other than you or your spouse. In other words, you’ll need additional witnesses or proof to support your claim.
Why Is Adultery Rarely Used as Grounds for Divorce?
Adultery can be addressed under the broader category of general indignities, which Arkansas courts recognize as sufficient grounds for a fault-based divorce. According to case law, general indignities require demonstrating a habitual, ongoing pattern of behavior that shows clear disdain or alienation, making the marriage intolerable.
Examples include:
Rudeness
Neglect
Open insults
Behavior stemming from an affair
Using general indignities instead of adultery often simplifies the legal process. It requires less circumstantial evidence and is easier to prove because it focuses on visible, ongoing actions rather than private conduct.
Additionally, opposing parties are more likely to waive the corroboration requirement for general indignities, making it a more efficient option for fault-based divorce filings.
Does Adultery Affect Custody, Property, or Support Decisions?
Contrary to popular belief, the reason for divorce (including adultery) does not influence decisions about custody, property division, or spousal support:
Custody: The court focuses solely on the child’s best interests. Under Arkansas law, joint custody is presumed to be in the child’s best interest unless there are specific reasons to decide otherwise (A.C.A. § 9-13-101). Adultery is typically irrelevant unless it affects the child’s safety or well-being.
Spousal Support: Alimony is determined based on the requesting spouse’s financial need and the other spouse’s ability to pay. Fault, including adultery, is not a factor.
Property Division: Arkansas law requires marital property to be divided equally unless an unequal distribution is justified by factors such as length of marriage, contributions to the marriage, or financial needs (A.C.A. § 9-12-315). Again, the reason for divorce does not influence this process.
When Adultery May Be Relevant
While adultery generally does not impact custody, support, or property decisions, there are exceptions where it becomes relevant:
Impact on Children: Introducing a new partner into the children’s lives during a divorce can influence custody decisions if it’s deemed not in the child’s best interest.
Financial Misconduct: If marital funds were used to support an affair (e.g., gifts, travel, or housing), the court may address this as a misuse of marital assets and seek repayment.
Next Steps
If you’ve discovered your spouse is having an affair, it’s crucial to consult an experienced divorce attorney. We can help you understand your options, evaluate the potential costs and benefits of filing under adultery or general indignities, and guide you toward an efficient resolution that protects your interests.
While adultery can serve as grounds for divorce, it’s important to weigh how it will affect the overall process and focus on achieving the best outcome for you and your family. Contact us to discuss your case and chart a path forward.