Defining What is Adultery in Alabama
Adultery in Alabama is defined as consensual sexual intercourse of a married party with one other than the husband or wife. As a fault ground for divorce, adultery is found in Section 30-2-1 of the Code of Alabama 1975. It is also found at Section 4, Title 30, Section 30-2-4 of the Alabama Code 1975. The latter is the basis for fault in Alabama’s no fault divorce law. In addition to the criminalization of adultery at Sections 13A-13-2 and 13A-13-3 of the Alabama Criminal Code, adultery is codified as grounds for divorce with two different sets of procedures . Under Section 4, Title 30, Section 30-2-4, adultery is a fault-based ground for divorce and Section 30, Title 4, Section 30-2-4(a) says in plain language: In all cases of divorce from bed and board, the court may suspend an execution on the judgment of the court for the period of the separation, except that, when the prevention of adultery by the other party or provocation to the other party to commit the adultery by the injured party shall be a good cause, in the discretion of the court, for restoring the parties to the marital relation, but not otherwise. One sentence, and it says more than enough. Years ago, adultery was illegal and could result in criminal prosecution, imprisonment and transportation abroad. While no longer a criminal offense, adultery appears in Alabama law to the extent that it is still a good ground (or can provide good grounds if someone else has a different perspective) for divorce in the state of Alabama.
Possible Legal Ramifications in Alabama
Under Alabama law, adultery-a voluntary act of sexual intercourse by a married individual with someone other than their spouse-is a ground for divorce. This legal ground for divorce allows the innocent spouse to file for divorce due to the willful misconduct of the other spouse. When adultery is a factor in divorce proceedings, it can have legal consequences that affect the financial and custodial aspects of the case. In Alabama, adultery can impact the distribution of marital property, the awarding of alimony, and the determination of child custody and visitation. One of the key legal implications of adultery in an Alabama divorce is its potential impact on the court’s decision regarding the division of marital assets. The division of property in a divorce must be equitable, and factors such as the length of the marriage, the financial and non-financial contributions of both spouses, and the conduct of the parties may be considered. In some instances, the court may decide to award a larger share of the marital property to the innocent spouse (the one who did not commit adultery) as a form of compensation for the harm caused by the other spouse’s actions. In addition to property division, adultery can also influence the court’s determination of alimony. Alimony, or spousal support, is a payment that one spouse makes to another for financial assistance following a divorce. Alabama law states that adultery is one of the factors that a court can consider in making decisions about alimony. Like property division, the court has broad discretion when deciding whether to award alimony and, if so, how much. The conduct of the parties, including adultery, is one of many factors the court may consider when deciding whether to award alimony, how much to award, and the duration of the alimony award. Adultery may also have an impact on child custody and visitation decisions in a divorce case. However, under Alabama law, the parent’s sexual conduct is generally not a direct factor in determining child custody. Instead, Alabama law provides that the best interests of the child control. However, in cases where a new partner of a parent has moved into the residence and has behaved in a manner that creates a potentially negative environment for the child, evidence of that conduct may be presented to the court. The court will consider the impact of the new live-in partner on the child’s health, safety, social, moral, and material welfare when making decisions about custody and visitation. Although adultery may have legal implications in an Alabama divorce, it is one factor among many that a court will consider in making determinations about property division, alimony, and child custody.
Burden of Proof for Adultery in Alabama
An Issue of Proof
Given the high stakes, the legal standard for proving it is not low. The evidence to support an adjudication will, of course, turn on the facts of each given case. Circumstantial evidence may be used to support proof of adultery. However, there is a requirement for corroboration of such circumstantial evidence. Direct evidence of a witness to personal actual conduct by the offending spouse is acceptable. In other words, proof of adultery will require testimony from someone who actually saw the affair with his or her own eyes.
The majority of divorcing spouses, of course, do not have such direct evidence of adultery on the part of the other spouse. But, although not easy to come by, uncovering evidence of infidelity and proving it can be done through the use of private investigators, computer forensic uses, cell phone records and interviews of attendants to the wrongdoing.
In the famous "Doctor’s Case" heard by the Alabama Supreme Court, the wife hired an investigator to begin shadowing her husband. She did not tell the investigator what she was after but just followed his findings and testimony. The investigator’s testimony was made as a deposition and was allowed to be heard by the court as evidence.
Other kinds of admissible circumstantial evidence may include abandoned hotel keys, notes, letters, smoke discovered in the man’s tuxedo pocket, perfume on his clothes, and, in one instance, direct evidence of the defendant actively burglarizing a neighbor’s home and taking an item from it, while the wife was presented with proof by the neighbor.
Changing Passwords
In a more contemporary context, some of the evidence uncovered takes the form of computer forensic evidence. In a case I recently had, the husband was presented with passwords to various accounts in the cloud so that the wife could look at documents and photographs that were stored there by the husband. There is often photographic evidence, app store evidence that may be useful, cloud document storage evidence with pictures and other statements, app store evidence (e.g. what apps were downloaded from the internet and when), and phone records that may show the time/date of texts or phone calls and the number to which they were sent or with whom they were shared. Facebook, Instagram, WhatsApp and similar apps may be probative as well.
Fighting Against Adultery Accusations
Defenses against adultery allegations can take a variety of forms. The most obvious and commonly used defense would contend that the defendant did not have sexual intercourse with a person other than his or her spouse. This is the most straightforward basis for defense, but as discussed above, many people think about adultery in broader terms. Many people find their spouse’s relationship with another person damaging and hurtful, even if the relationship does not reach the level of sexual intercourse.
A much more difficult-to-establish defense available to a person charged with adultery is the affirmative defense that seeks to show that the complaining party was the pursuing spouse. A pursuing spouse, under Alabama law, is a married person who knows his or her spouse is also married to a third party and still pursues the extramarital relationship. Because Alabama does not recognize any defense of condonation to adultery , the concept of the pursuing spouse recognizes a legal and moral balance in a world wherein people commit adultery. The concept of the pursuing spouse applies only to adultery, and not to the crime of Bigamy.
Because ameliorative adultery (discussed earlier in this article) is available to people accused of adultery, the law does not recognize the defenses of need and necessity to adultery. Need and necessity refer to circumstances facing individuals from different socio-economic backgrounds that lead them to commit adultery under the legal concept of ameliorative adultery.
The last common defenses available to a person accused of adultery is usually asserted by the complaining party. This is the defense of recrimination. Recrimination refers to adultery committed by the complaining party, which if true would bar recovery by that party. The law does not provide a specific authority for the defense of recrimination. Because of that, courts may base a decision agreeing with the defense of recrimination on the affirmative defense of pursuing spouse or the ameliorative adultery consent defense.
Marital Assets and Adultery
Following a divorce in Alabama, most parties are prohibited from dating until they are either divorced or legally separated. Alabama Code § 30-2-55 prohibits either party in the divorce from "cohabiting with or dating after the filing for divorce with another individual." This prohibition, however, does not indicate that one party to a divorce that results from adultery cannot benefit from the wrongdoing of the other party.
The legal theory of "committed intimate relationship" ("CIR") arises in Alabama divorces where one party commits adultery or has sex outside of the marriage. It is well settled in Alabama that adultery can constitute grounds for divorce, which are set out in Alabama law, Alabama Code § 30-2-1. Legal Principle No. 6 sets out that "adultery . . . is a ground for divorce from bed and board, and is a bar to alimony in favor of the guilty party and may be considered when disposing of property." In other words, adultery, depending on the circumstances, can possibly provide for a greater or disproportionate division of the marital assets in favor of the non-guilty party.
As stated above, Alabama law holds that adultery can be considered in the distribution of the marital assets. The Alabama Supreme Court has held that "[a] trial court may consider marital misconduct, such as adultery, in its distribution of marital property." Campbell v. Campbell, 412 So. 2d 1182, 1183 (Ala. 1982) (holding that the trial court did not abuse its discretion by taking into account the alleged adultery of the wife when it divided the marital property). See also Johnson v. Johnson, 413 So. 2d 1107, 1108 (Ala. Civ. App. 1982) (holding that the circuit court did have discretion to consider the contribution of the adultery to the deterioration of the marriage); Carroll v. Carroll, 265 So. 2d 645, 646 (Ala. Civ. App. 1978) (holding that the trial court was authorized to take into consideration evidence of the wife’s alleged infidelity in making her equitable distribution of the husband’s pension benefits).
While there is a line that must be drawn as to when the adultery occurred and whether the act severed the marriage so as to no longer be governed by legal principles that provide for equitable distribution of the assets and liabilities, there is no clear cut line as to where this line is drawn. Many people confuse legal principles concerning adultery with their basic notions of right and wrong. What they are really referring to, however, is the societal notion that "right and wrong" has little place with the issue of equitable distribution of marital assets such as: retirement accounts, real estate, bank accounts, and debts.
Getting Help on Adultery Matters
If you find yourself in a situation involving alleged adultery (whether accused of, or victim to, an affair), it is in your best interest to seek legal counsel from an attorney who understands the intricacies of Alabama adultery laws. An experienced divorce attorney will be knowledgeable on the ins and outs of adultery related divorce cases and offer guidance on how to best approach the situation.
In addition, a knowledgeable lawyer will be able to determine whether an affair could result in "guilty of voluntary abandonment or living in open adultery" under Alabama law, and how your situation might hold up in court.
Courts are increasingly tolerant of "no-fault" grounds for divorce, and divorces that involve adultery might be treated in the same way, depending on the circumstances of the affair .
A qualified attorney will examine the facts of the case—including the length and nature of the affair—to determine whether it might affect the division of property in a divorce. In the majority of adultery cases, adultery does not necessarily constitute infidelity on the part of both partners—meaning adultery laws may not apply to both parties.
Your attorney will advise you on whether you need to disclose the affair or other surrounding details of the divorce to the court, including how to portray the affair when discussing it with the judge and in your divorce papers. The importance of hiring a lawyer for your adultery law-related case cannot be understated.