Kevin J. Waite, P.C. | Attorney Blogs


North Idaho Attorney Kevin J. Waite, P.C. on Wednesday, January 24, 2018

Most divorces are granted on the basis of irreconcilable differences. This is sometimes called a "no fault" divorce. But fault can still be claimed, and it sometimes is. Probably the most commonly claimed fault in Kootenai County and elsewhere is adultery.

Under Idaho law, adultery is defined as the voluntary sexual intercourse of a married person and a person other than the offender's husband or wife. Thus, "an internet affair," whose participants have never met each other physically, does not qualify.   

For divorce purposes, adultery must have occurred within the two years prior to the filing of the claim of adultery. This is essentially a statute of limitations. Also, the offending conduct must also "cause" the divorce. The spouse who decides in the middle of a divorce that it's over and “hooks up” with a new sexual partner has therefore not committed adultery for purposes of divorce since that conduct did not "cause" the previously filed divorce.  

Of course, in some cases the allegations of divorce are denied by the other party. The adultery claim must be proven, and must be proven by clear and convincing evidence. "Clear and convincing evidence" is a higher standard than is required for most civil claims (for which the preponderance of the evidence standard applies) but is less than the beyond a reasonable doubt standard of criminal cases. Evidence of adultery can consist of testimony and documents (e.g., hotel and credit card records). Circumstantial evidence can be enough to prove adultery. It is not necessary to catch the offending party in the act, although when that occurs and is memorialized with good photography, denial is a tougher sell.

Understandably, an adultery claim tends to make a divorce case more contentious and more expensive. A finding of adultery can affect how a court will divide assets and debts (and strong proof of adultery can therefore influence a settlement), but a judge is not required to award more to the innocent party if that party proves an adultery claim. Fault is only one of several factors for a judge to consider in deciding whether to keep the distribution of community assets and debts equal. The gain from proving adultery is frequently only emotional and not financial.

Recent rulings upholding same-sex marriage may lead to new issues in the law of adultery when some of those same-sex marriages become same-sex divorces.

This discussion of adultery is limited to the context of divorce. Adultery is also a criminal misdemeanor in Idaho, although hardly ever prosecuted. The limitations discussed above do not apply in the criminal context.

This blog, like any blog, is not intended as legal advice, and an attorney should be consulted about any specific situation.