Proving affair for alimony and cc/add claims


I have 7 inter-related questions that I wanted to pose together so you can get a sense of the full picture and can provide advice accordingly:

  1. Are these facts sufficient to prove that marital misconduct of an affair took place?
    -Phone records dating back 4+ years of multiple conversations, text and picture messages (no content available for text and picture messages, just dates and times)
    -Picture of them kissing
    -Saying they are traveling on business ~5 times, but phone records prove they were not in the town they said they were in. In a few of those cases, the actual location happens to be the paramour’s home town
    -Verbal admission by the spouse that they had an emotional affair, that they were out of town in a hotel with the person but they say they didn’t have sex and that there were others in the hotel room as well on all occasions

  2. How would the following “forgiveness” facts impact a claim for alimony, criminal conversation and/or alienation of affection:
    -Letter stating the desire to stay in the marriage and that they had been forgiven, and that their emotionally abusive behaviors contributed to the r easons for an emotional affair in the first place
    -Marital relations on two occasions since the affair was found out
    -Seeking, scheduling and attending marriage counseling sessions several times after finding out about the affair
    -Stayed in the marital home for 3 months before moving out, and only moved out when they were forced to by the spouse (i.e., wanted to stay)
    -Verbally expressing the desire to reconcile for several months after moving out
    -Verbally asking to have marital relations several months after moving out

  3. Would the answers above change if corporate cell phone/email records could show that the spouse and paramour continued to see each other prior to separation?

  4. How difficult and expensive is it to subpoena corporate cell phone/email records from large companies with a large legal staff?

  5. Would the answers above change if the spouse and paramour are dating while separated (not divorced)?

  6. Does the alimony claim get better or worse considering the supporting spouse had the affair above, yet the dependent spouse was and is voluntarily un-employed for almost 4 years which required them to use up their savings?

  7. What is required to prove marital misconduct due to emotional abuse? Assuming this is difficult to prove, how do journal entries of emotionally abusive behaviors factor into an adultery and alimony claim.

  1. Phone calls in and of themselves don’t necessarily denote an affair, but they can be used to bolster other evidence. A picture of a kiss, a sexual kiss, would definitely support your claim. The circumstantial nature of their covering up while not being in the place they said they were, lends itself to supporting AA, especially since it’s her home town. All of it together paints a bad picture for them.

He can always deny the admission, so the courts will weigh it appropriately.

  1. Forgiveness negates an AA claim unless it continues after the point of forgiveness. AA is commonly seen as a process rather than a single event. So, the alienation isn’t considered complete until after the last attempt at reconciliation fails. So if you had sex and forgave, the paramour is in the clear unless they resume a relationship after that period of forgiveness. (Not sure if I’m wording this clearly.) If you can prove that she continued/initiated contact despite an attempt for you two to reconcile, you can probably get punitive damages.

CC is more cut and dried…‘was there sex between a married spouse and an unmarried paramour?’…period.

  1. Cell/email records can corroborate other evidence of involvement prior to separation.

  2. (…that’s an Erin question)

  3. If they are sleeping together now, they have committed CC. You’ll need positive proof that a sex act has taken place, a written admission, or opportunity and inclination.

  4. If the supporting spouse had an affair, then he will most likely have to pay alimony. Income may be imputed to you, which would lower the amount of alimony, since you are voluntarily unemployed. Given the situation, though, you may be able to get some of the alimony increased because of the marital misconduct.

  5. In the one case I can recall about emotional abuse, the husband testified that the wife had pulled a weapon on him, threatening him, then turned it on herself and threatened suicide. The courts ruled that it was indeed emotional abuse. A substantiated journal would be weighed according to it’s believeability, I suppose, and in conjunction with other evidence to corroborate emotional abuse.


All the evidence you mention could certainly be used to prove an affair occurred. However whether an affair occurred or not will ultimately be decided by the judge (or jury in some instances) based on a preponderance of the evidence standard., ie in looking at the evidence presented the finder of fact finds that it was more likely than not that an affair occurred.
Condonation, or forgiveness of an affair bar the forgiving spouse from asserting the affair in a claim for alimony or alienation of affection. These facts could go either way as to whether a condonation occurred.
Isolated acts of sexual intercourse, and or remaining in the same residence do not alone constitute a condonation, the letter is of most concern in this case as it outright states that the affair was forgiven.
My answers do not change based on the affair beginning before the separation, that only bolsters the case for adultery. If the affair began after the separation it is ineffective to bolter a claim for alimony and as of October 31, the new laws with respect to alienation of affection go into effect, which lessen the effect of post separation behavior as corroborating evidence that an affair began prior to separation.
Subpoenas themselves are not expensive, the cost to subpoena records will depend on how vigorously the company fights to protect their records.
Alimony is not punitive in nature, and the affair, if proven, only provides that the support spouse shall pay alimony. The voluntary unemployment will not be used to place blame on the dependant spouse, however earning capacity can and will likely be considered in evaluating the dependant spouse’s need.


Thanks Erin. 3 clarifying questions:

  1. Based on what I have read, alienation of affection isn’t possible because our marriage was in horrible shape before the paramour came along, which can be proven through journals and the spouse’s counselors over the years. Is this true?

  2. The letter is very very specific about forgiveness and was begging to continue the marriage and put the affair behind us. It even states that it was understandable that the affair occurred due to the shape our marriage was in and that the spouse was driven to it by the other spouse’s abusive tendencies. If a judge/jury ruled that this was in fact condonation, then
    a) how would that impact an alimony claim for marital misconduct?
    b) how would that impact an aa claim against the paramour?
    c) is condonation an effective defense against cc claims against?

  3. Regarding the new law in October: The affair was discovered at the end of 2008 and we separated a few months later. The affair halted when it was discovered (or at least that is what has been claimed). If they were to resume their relationship after this law takes effect, and if condonation has in fact occurred, then does the new law mean a cc claim cannot be filed?


Yes, you have to prove that you were doing well in your marriage, I think the journals would refute that. If the letter is adjudge a condonation ( I think it would be) the affair can’t be used to bolster a claim for alimony, however it there is a dependant spouse, and a support spouse alimony will likely be ordered aside from the affair.
The alienation claim is also affected by the forgiveness, as it shows the affection was not destroyed by the affair.
Criminal Conversation is a strict liability tort, meaning there are no defenses. All a spouse has to prove is that the 3rd party paramour had sex with the other spouse. Condonation is immaterial.
The new law does not prevent the filing of an action in this case.


[quote]The alienation claim is also affected by the forgiveness, as it shows the affection was not destroyed by the affair.

I’m curious about this. I had been told that the STBX still could theoretically sue for AA because even after the separation began (her initiation for other reasons, although she later claimed it was an affair), the expression of forgiveness via phone msg, and some marital relations, she alleged he eventually left her for me. So rather than the date of separation being the date for final alienation, the time period where they stopped marital relations and he expressed his wish of never returning would be used. The reasoning was that it was considered that the alienation had begun prior to separation, but wasn’t complete until well after the separation. Was this bad advice given?

(To others reading this, FWIW, no affair occurred. Dating began after she asked for divorce and he moved out. We knew each other prior to separation, but only in a business capacity. She had to drop the lawsuit since I had sufficient proof to counter her claims. Thank God for keeping good records!)