How to proceed?

I have just discovered that my wife is having an affair, or at least I am 99.9% sure. I am still trying to learn the name of the person who she is sleeping with; so what should I do to collect solid evidence that this is happening? What is considered good evidence that will hold up in court?

Our marriage of 10 years has been very rocky in the past few years mainly because of health issues that put me on medicine that impairs my ability to perform sexually. She has expressed a lot of concern over this; so I was willing to go on Viagra (which I had been reluctant to in the past as I am a fairly young man still and already on a lot of medicine in the last year. Its also very expensive.) However once the Viagra was obtained she did everything to pretty much ignore my requests to try it out and we have not had sex in probably 6 months, maybe longer I can’t recall its been so long.

Our sex life has always been abysmal and a lot of it is my fault, I have been facing health concerns over the past 10 years which I am sure have contributed to my ability to function. I understand she is a woman with needs and shouldn’t have to live in a sexless marriage. I even told her two years ago if she wanted to go I would understand, but she swore she did not want a divorce and wanted to stay together for our girls, who are absolutely wonderful. The one thing I told her though I could not tolerate was her having an affair behind my back. She swore she had never had an affair but had thought about it, I believed her. It seems now though she has gone and done that exact thing rather than just being up front about wanting to leave. I can only assume now she wants to keep me around until she is in a better position to leave me financially or she just wants to keep me around for our girls and have her affairs on the side. (Which also has me wondering if this is not the first one.) I refuse to be used until the time is right for her, so now it seems I have little choice but to initiate divorce. My biggest concern being how it will devastate my children.

Also I would like to know when I should confront her with the affair? I have read that its stupid to confront without clear evidence because they will just deny everything and start covering their tracks better.

Legally proving an affair has two potential implications:

  1. If your wife is the dependent spouse in that it wipes out alimony and post separation support.
  2. With the proper evidence, you can sue the paramour for alienation of affection/criminal conversation. For this to be worthwhile, the paramour better have a lot of money. I’ve been told that the cost associated with prosecuting a case such as this is ~$30,000 to $50,000. If the paramour doesn’t have assets to collect, then it won’t be worth your while financially. To be successful at an alienation case, you also have to prove that the actions of the paramour truly caused alienation of affection and caused the end of your marriage.

In order to legally prove the affair, you have to have evidence supporting:

  1. Inclination: Love letters, text messages, affection in public (pictures/video)
  2. Opportunity: You have to prove the opportunity existed for them to engage in sexual acts in an unsupervised situation

You need both elements to be successful. Good luck.

P.S. - I’m not a lawyer, but I went through all this myself.

I also forgot to mention that if you’re going to pursue evidence collection, it’s obviously not smart to confront your wife before you have sufficient evidence.

Junior jam is correct with respect to what is needed to prove adultery, and the implications of proof of an affair. I would suggest you gather some evidence of the affair prior to confronting her.