How to Prove Adultery in New Hampshire

Many people are under the misconception that in order to prove adultery there must be either photographic or videotape evidence of the sexual intercourse.  This is not so.  While proving adultery is complex, and there are many elements which must be proven to the court, video or photographic evidence, while helpful, is not required.  Instead, circumstantial evidence of both opportunity and inclination is considered sufficient evidence on the issue of adultery. 

Inclination is nothing more than establishing that the cheating spouse had the desire to engage in sexual intercourse with another not his or her spouse.  This is often time established by evidence of e-mails and text messages between the parties or through cell phone records establishing contact of long duration or during unusual hours.  Evidence of inclination can also be established by eye witness contact, showing inappropriate comments or contact between the individuals. 

Evidence of opportunity is established by the cheating spouse and the significant other either entering or exiting house or hotel or spending time alone in an automobile in a secluded place.  This evidence is often derived from an eye witness, friend, neighbor or a private detective.  Evidence of opportunity can also be established by e-mails wherein the cheating spouse acknowledges being alone with the significant other even if it does not state that they had sexual intercourse.  Courts have found such e-mails sufficient circumstantial evidence in order to grant a divorce on the grounds of adultery.

Even significant evidence of inclination and opportunity is not sufficient, by itself, to obtain a divorce on the grounds of adultery.  The next element the innocent spouse will need to establish is that the adultery was the primary cause for the breakup of the marriage.  In order to succeed on this, the innocent spouse must prove that but for learning of the adultery, both parties would have stayed in the marriage and not filed for divorce.  While most marriages experience difficulties, these difficulties in and of themselves are often not sufficient to defeat a claim of adultery.  Sometimes, however, a marriage may have broken down well before the adulterous act.  In such cases, the court may not grant a divorce based upon adultery.