Proving Infidelity

Your Quick Guide to Relationship Success

Although adultery is nothing new, proving infidelity may never have been harder. This is because what you are proving, may not always involve the physical act of sex. Computer sex, telephone sex, and even e-mail flirtation may be seen as adulterous, causing the other partner to feel the marital relationship has been violated.(1)

Steven M Cohn, PhD, LMFT
Virtual Marriage and Couples Counseling
Serving Clients Throughout Oregon
503-282-8496

Gender may help determine what you need to find in your search for proving an affair. Studies have shown there is a definite difference in the way men and women react to emotional and sexual indiscretions. Men get more upset when confronted with sexual infidelity, while women get more upset when they sense their partners have been emotionally unfaithful.(2)

Before you set about seeking proof of adultery, you may want to consider why you need to know certain facts. Although proof of infidelity was required in the late 19th Century for a divorce to be granted, many states no longer require that you offer proof of unfaithfulness or alienation of affection as a reason for divorce.(3) In fact, some states hold that allegations of marital infidelity are slander per se.(4)

Before you put too much effort into proving infidelity you ought to make sure it matters to the courts. Even when considering custody matters, a judge is not likely to care whether one parent cheated but the other did not.(5)

If you are intent on seeking evidence of sexual or emotional wanderings emotional wanderings, Dr. Robert Huizanga offers the following top-ten list of signs your spouse may be cheating:

(1) You find birth-control pills in her medicine cabinet, and you've had a vasectomy. (2) Mutual friends start acting strangely toward you. (They either know about the cheating or have been told stories about what a horrible wife or girlfriend you are.) (3) He stops confiding in you and seeking advice from you. (4) He or she sets up a new e-mail account and doesn't tell you about it. (5) He leaves the house in the morning smelling like Irish Spring and returns in the evening smelling like Safeguard. (6) She joins the gym and begins a rigorous workout program. (7) She buys a cell phone and doesn't let you know. (8) He sets up a separate cell phone account that is billed to his office. (9) He carries condoms, and you are on the pill. (10) He or she begins to delete all incoming phone calls from the caller ID.

I would encourage you to seek counseling, even without proving infidelity because even having the suspicion may indicate that you and your partner can benefit from therapy. You may think proving infidelity will be therapeutic, but the emphasis your therapist puts on proving infidelity may not be as high as that put on assessing the factors that contributed to the alleged affair. The therapist will likely want you to focus on healing, rather than on proving infidelity that may have happened in the past.

End Notes

(1)Cossman, B. The New Politics of Adultery. Columbia Journal of Gender and Law 15:274 (2006).

(2)Cramer, Robert Ervin; Abraham, William Todd; Johnson, Lesley M.; Manning-Ryan, Barbara. Gender Differences in Subjective Distress to Emotional and Sexual Infidelity: Evolutionary or Logical Inference Explanation? Current Psychology 20(4): 1327 - 1336 (2001).

(3)Nguyen, B.V. Hey, That's My Wife - The Tort of Alienation of Affection in Missouri - Thornburg. V. Federal Express Corp. Missouri Law Review 68:241 (2003).

(4)Greenstein, J.B. Sex, Lies, and American Tort Law: The Love Triangle in Context Georgetown Journal of Gender and the Law 5:273 (2004).

(5)Wardle, L.D. Parental Infidelity and the No-Harm Rule in Custody Litigation Catholic University Law Review 52:81 (2002).

Proving Infidelity

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