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 video and photographic evidence is helpful, it is not required. Instead, circumstantial evidence of both opportunity and inclination are considered sufficient evidence on the issue of adultery.
The New Hampshire Supreme Court has outlined that adultery is “voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband.” Accordingly, a divorce may be granted if it is shown that one spouse engaged in an adulterous relationship, and the adulterous relationship was the primary cause of the breakdown of the marriage. In describing what is required to prove adultery, the New Hampshire Supreme Court has stated “it is a matter of common knowledge … that eye witnesses are not usually available in adultery cases so that circumstantial evidence of both opportunity and inclination is considered competent 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 testimony of witness who have observed inappropriate comments and/or contact between the spouse and his/her lover.
Evidence of opportunity may be established by evidence of the cheating spouse and his or her paramour 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 testimony, whether it be a friend, neighbor or a private detective. Evidence of opportunity can also be established by e-mails wherein the cheating spouse acknowledges being alone with his or her paramour, 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 though you may have significant evidence of inclination and opportunity, that is not sufficient, by itself, to obtain a divorce on the grounds of adultery. The innocent spouse also must prove that the adultery was the primary cause for the breakup of the marriage. 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 be broken down well before the adulterous act. In such cases, the court may not grant a divorce based upon adultery.
Even if a spouse proves the existence of an adulterous relationship and that the adulterous relationship is the primary reason for the divorce, the innocent spouse is also required to prove that the adultery caused either substantial emotional harm to him or her, or resulted in a substantial financial loss to the marital estate.
If you have any questions regarding an adultery claim, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.
Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court. Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.