Is Adultery a Crime?

Infidelity is the listed cause in many divorce cases. If you’re getting divorced for that reason, you understand how sensitive the topic is. 

Understanding the legal implications of adultery can be vital, especially for those navigating divorce. While it may seem surprising, adultery is actually considered a crime in 16 states.

In which states is adultery a crime?

Sixteen states consider adultery to be a crime. These include the Carolinas, Georgia, Mississippi, New York, Utah, Minnesota, Wisconsin, Michigan, Idaho, Oklahoma, Massachusetts, Illinois, Kansas, Florida, and Arizona. Some states consider adultery to be grounds for divorce while others don’t.

Let’s take a closer look at how adultery is handled in some states.

  • In Florida, adultery is classified as a second-degree misdemeanor under Section 798.01 of the Florida Statutes. It is punishable by up to 60 days in jail and a $500 fine. But prosecutions are rare, largely due to the difficulty in proving an extramarital affair.

  • In Illinois, under the Illinois Compiled Statutes, adultery is considered a Class A misdemeanor. Getting caught could result in up to a year in jail and a fine of up to $2,500. Yet, much like Florida, this law is seldom enforced.

  • New York, a no-fault divorce state, still lists adultery as a crime under its penal law. However, it's rarely prosecuted, and proving it in court is complex and invasive.
  • California is an example of a state that does not criminalize adultery. Like many other states, California is a no-fault state. This means the courts don't consider either spouse's misconduct when dividing property or awarding alimony during a divorce. The rationale behind these laws is to avoid the blame game and focus on the equitable dissolution of marriage.

It's important to note that while adultery is technically a crime in some states, it's rarely prosecuted. This is due to various factors, including privacy concerns, the difficulty of proof, and changing societal norms. Nevertheless, understanding the legal landscape of adultery can be crucial for a married person contemplating or going through a divorce.

Read: Types of Affairs and Coping with Infidelity

How can you prove adultery?

Adultery can be a complex issue in divorce proceedings, particularly in states where it's considered a crime. But proving an act of adultery in court isn't as simple as stating that your spouse had an extramarital affair. It requires evidence and, often, the assistance of legal professionals.

The burden of proof falls on the accuser. That person must demonstrate two key elements: the opportunity for infidelity and the inclination of the adulterous spouse to commit the act. The former refers to circumstances that would allow for an affair, such as being alone with someone else. The latter involves demonstrating a romantic interest between your spouse and another person. This could be through love letters, text messages, or witness testimonies.

Read: Top 8 Reasons People Give for Infidelity

Proving a spouse’s adultery can be challenging given the private nature of these relationships. It often requires hiring a private investigator or obtaining digital evidence of sexual relations, both of which can be costly and invasive.

While jail time is a potential outcome in states where adultery is a crime, it's highly unlikely due to the rarity of prosecutions. Instead, the implications of adultery are often more prominent in divorce proceedings, where it can impact the division of assets or custody arrangements, depending on the state's laws.

Notably, in some jurisdictions, if you continue to live with your spouse after discovering their infidelity, you may be considered to have forgiven, or condoned, your spouse’s infidelity. This could potentially undermine any claims based on the behavior.

Read: Can a Cheating Spouse Be Penalized in Divorce?

Adultery can be a painful revelation, but it doesn't always signify the end of a relationship. Some couples find ways to rebuild trust and move forward. For more thoughts on this, read our article, Should Infidelity in a Marriage Signal a Need for Divorce?

But if divorce feels like the right path for you, know that you're not alone. Hello Divorce is on your side. We are here to help, making the process more affordable and accessible. We invite you to explore our services and take advantage of our 15-minute free call to discuss your situation and learn how we can support you during this challenging time.

Read: Does Cheating Affect Your Divorce Settlement?

Divorce Content Specialist & Lawyer
Divorce Strategy, Divorce Process, Legal Insights

Bryan is a non-practicing lawyer, HR consultant, and legal content writer. With nearly 20 years of experience in the legal field, he has a deep understanding of family and employment laws. His goal is to provide readers with clear and accessible information about the law, and to help people succeed by providing them with the knowledge and tools they need to navigate the legal landscape. Bryan lives in Orlando, Florida.