Adultery is generally recognized as a valid basis for divorce. Adultery is voluntary sexual intercourse between a married person and someone other than that person’s spouse. (Black’s Law Dictionary).
Adultery that is obvious can be easily proven in court. An example is where a married person resides openly with the non-spouse as if they were married before the divorce. Another example is when the married person either impregnates or is impregnated by a non-spouse during marriage. An adulterous spouse will usually conceal the adultery before divorce. In those cases, a spouse claiming adultery should have strong circumstantial evidence of the adulterous affair. Videotape showing the adulterous spouse and the non-spouse entering a dwelling or a hotel/motel on a specified date, and remaining inside for a significant period of time should be sufficient basis for the allegation. Copies of receipts for the hotel/motel coupled with the videotape will make a stronger case.
Caution should be exercised before claiming adultery in divorce. Court records of divorce proceedings are usually matters of public records. A married person falsely or recklessly accused of adultery by his/her spouse may claim defamation of character against the other spouse making the accusation. The non-spouse alleged to be involved in an adulterous affair may also have a defamation claim against the person making the accusation. A false oral or written claim of adultery made to a third party that damages the reputations of those allegedly involved in the adulterous affair is defamatory. A false claim of adultery will also have a negative impact in the divorce case on the spouse making such claim.