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Does an 'Emotional Affair' Count as Adultery?

Posted By Cairns Law Offices || 23-May-2016

Ask any divorce attorney, and they will admit that a significant percentage of their divorce cases involve adultery. If your marriage was destroyed by an affair, it does not make your divorce stand out from other divorces. Instead, it means you fit right in.

While many would argue that a Facebook affair or a string of racy text messages qualifies as "cheating," in the eyes of the law, it's not exactly "adultery."

If one of you had an "emotional affair" with someone that was not your spouse, but it did not get physical, then the scandalous relationship will not impact your divorce the same as it would if that that relationship had been consummated.

Adultery Under Pennsylvania Law

Each state addresses adultery differently. For example, in California, evidence of adultery is NOT considered in a divorce. In Pennsylvania, the court is interested in a spouse's misconduct, and that includes cheating, domestic violence and substance abuse.

Under Pennsylvania law, adultery is pretty simple: Adultery refers to voluntary sexual intercourse with someone who is not your spouse. If an innocent spouse can prove that their husband or wife committed adultery, it can affect spousal support and property division.

Essentially, if a spouse commits adultery in Pennsylvania, he or she is not eligible to receive spousal support.

The key here is "sexual intercourse." If your spouse flirted heavily with a coworker, or kissed someone at a bar, that would not meet the definition of adultery under Pennsylvania law, even though you may feel that it's as bad as cheating and understandably so.

Providing Evidence of Adultery

Adultery is a big deal, especially if it will affect spousal support and property division. If you are the breadwinner for example, and your wife had a year-long affair, you could save thousands in spousal support if you can prove that she cheated on you.

If you believe that your spouse had an affair, you will need to prove it by supplying the court with sufficient evidence supporting your accusations. You don't have to prove actual sexual contact, since this can be difficult, but you can use circumstantial evidence, such as:

  • Emails
  • Pictures
  • Videos
  • Text messages
  • Social media evidence

The Pennsylvania courts take adultery very seriously. Adultery can affect a spouse's ability to receive spousal support, and it can cause the adulterer to receive a smaller portion of the marital estate. Infidelity won't usually impact child custody or visitation unless the children were negatively impacted.

If you have questions about how infidelity in your marriage will impact your divorce, don't hesitate to reach out to a Pennsylvania divorce attorney from Cairns Law Offices.