AA won’t matter here bc the marriage was in bad shape way before the affair started, which can be proven. But for CC, how do you prove sex happened? Are phone records and photos of kissing enough? We were both married when this started and are hoping to get married when all this is said and done. CC statute of limitations is 3 years but would the judge go easier on the situation if we were married?
Kissing alone does not imply sex. However, photos of kissing can imply inclination, which taken with other evidence (overnight stays, going off together, cohabiting) can provide the inclination and opportunity for a circumstantial case for CC. Not the strongest, but all the evidence would have to be evaluated together.
Don’t fool yourself about AA claims, though. AA requires only that some genuine love existed within the marriage. In some past cases, valentine’s day cards with inscriptions, certain gifts have been used as evidence of existing affection between spouses. Even a previous separation cannot necessarily demonstrate loss of love since the parties obviously returned to the marriage “because of mutual affection”.
As far as marriage goes, I would think that that would tend to help prove one’s case against as it demonstrates that there was the inclination to get together for sex.
CC is a strict tort where it doesn’t matter the reasons. You have sex while one of you is still married = guilty. A judge isn’t going to ease off of an award simply because you married after the person with whom you had an affair. (I’m assuming that you both were married to different spouses and are planning to marry each other when this is over with.)
One must prove, under a preponderance of the evidence standard (ie it was more likely than not) that sexual intercourse occurred. This is proved through inclination- the pictures and phone records can show the two people where inclined to engage in sexual acts. The second element is opportunity, for example, hotel receipts.