How To Prove Infidelity
Make Sure It Matters
Ask your lawyer to make sure. Increasingly, states shift toward disregarding marital misconduct by either spouse, focusing instead on a dispassionate analysis of what each party needs and what each party can afford, or fairly rigid application of defined guidelines. If you're in one of those states, all you'll accomplish by proving an affair is to remove the doubt about it. That may give you peace of mind, but it won't help you get a better settlement unless you can use the threat of public shame as leverage. If you're in one of those states where marital misconduct still matters, though, and if you suspect your spouse has been unfaithful, read on. Let's talk about how to prove it.
Put It in Perspective
Even in those states where adultery and other marital misconduct can have an impact on the financial settlement, the impact is often less than people think. If you imagine your divorce as a hypothetical 55/45 split, for example, maybe rock solid evidence of an affair would shift the financial settlement by 10-15%. Rarely more. And as you'll read below, evidence of infidelity is rarely rock solid, so you may go to a great deal of trouble and expense proving your spouse has committed adultery and then be disappointed with how little difference it makes with the judge.
Judges Understand the Real World
Divorces on TV and in movies always feature lots of 8 X 10 glossies showing spouses locked in a passionate embrace with someone else, or worse. This rarely happens in real life. The evidence of infidelity that people tend to be able to gather nowadays is more circumstantial and inferential. Because judges are accustomed to this, it's okay that this is all you have.
Here are the kinds of evidence you're more likely to be able to find and present to a court:
Preserve the Evidence
The most important single step you can take if you suspect your spouse is having an affair is to protect the data on his or her personal computer(s). I'm continually amazed at the boldness and specificity straying spouses use in their online communications. People who would never dream of hinting in a written note that they are unfaithful may write long, passionate e-mails or carry on torrid IM interchanges spelling out in vivid detail what they have done, imagine doing, and plan to do with their paramour. You probably can't penetrate all the security and read these messages yourself, and needn't try. Your task is to capture a snapshot of your spouse's computer. Then later, an expert trained to do such things can analyze the contents of the hard disk and find out what's on it.
If you suspect the behavior is ongoing, you may consider installing some kind of keylogging software that will capture every keystroke your spouse types. This may be the only way to preserve instant messages, and it may be the only way to hold onto e-mails that are stored on services like Yahoo!, Hotmail, and Gmail, because they don't exist on the hard drive, only on the remote server. Before you do, however, make sure you visit with your attorney to confirm that the steps you're taking are legal. Installing the software may be illegal in several states, especially if you are not the owner of the computer.
Many cell phone companies keep records of their customers' specific calling activity, but only for 2-3 months. If you suspect your spouse is having an affair, talk to your lawyer now. It may be advisable for your lawyer to proceed with filing the divorce just so you can subpoena your spouse's cell phone records and get usable data.
Stick To What You Know
Judges have learned over time to discount what one spouse thinks about what the other spouse did and why, so this is not going to be about your saying what you think your spouse did. It's about presenting evidence the judge can understand. Avoid making inferences or guesses unless your lawyer asks you to make them. Focus on what you know and can prove to the judge.
Keep the Kids Out
I can't think of anything crueler to a child than asking that child to help prove that Mom or Dad is cheating. Well yes, I guess there are crueler things, but not many. Just don't go there. Even if your kid has the goods and is willing to testify, the consequences are devastating. If proving adultery requires the testimony or participation of your child, it's rarely worth it.