Proving adultery with texts and phone lists

My wife and I are in pre-separation mode. We go to marriage therapy and have a mutual desire to separate to work things out. We also have been in a sexless marriage for the past couple of years. She has been calling and texting a man for the past couple months that I don’t know and erases all evidence of the texts. Should I try to somehow prove adultery before the separation agreement is signed? Are long phone calls and texts enough? Does the sexless marriage affect any of this?

To prove adultery you must show that your spouse had the inclination (romantic) interest, and opportunity (staying over night together) to have sex with another person. Unless the text messages admit to, or discuss actual intercourse, they will not be conclusive proof of adultery, but may help proving the inclination was present. Adultery is a bar to alimony, so if you are the supporting spouse I would suggest you dig a little deeper before proceeding with a Separation Agreement.

The lack of sex in the marriage has no effect on separation and divorce.

We are planing on sharing an apartment separately where we would individually spend about 50% time away from kids who stay in our home, while we work things out. Can I take the apartment in my name, try to prove adultery and stall on the separation agreement? Will moving out into an apartment make it look like we are already separated and any proof of new adultery be inadmissible?

No, you may prove adultery after you live separate and apart.

I think that once you move out, say for example 12/18…if you get a text message proof on 12/20 that she is planning to go over to his place and have relations…that would not necessarily be able to be used because it was after the date of separation…but if you move out on 12/18, and find proof later that she was planning to go there on 12/15 and have relations, that would still be proof of adultery, because it happened before you moved out…

Just my non-lawyer take…you can still look for proof of the adultery after you move out, but only proof of what happened before you moved out may be used in an adultery claim.

needtoleave is correct with one correction – if the evidence you gather on/from 12/20, bolsters your claim that the adultery was potentially occurring prior to separation, then it can be used.