Separated Spouses Beware: Post-Separation Adultery Bars Fault-Based Divorce

Posted in: Family Law

Christopher Ross probably thought he was in the clear. His wife of nine years, Danielle, had filed for divorce on grounds of irreconcilable difference—code for a no-fault divorce—and he counter-claimed for divorce on grounds of her alleged adultery. There was no question that the couple would get divorced, leaving just the usual questions about custody of their two children, child support, spousal support, and division of marital property. Their divorce was right on schedule—the median length of a marriage that ends in divorce is a little over eight years—and Christopher moved on and began a relationship with another woman. Just like all the self-help books probably told him to.

Danielle’s alleged adultery, which occurred before either of them filed for divorce, could constitute grounds for divorce. Did his have any potential consequence? Was it even adultery?

This question went all the way to the New Hampshire Supreme Court, which ruled that Christopher’s conduct did constitute adultery and had the effect of barring him from receiving a divorce on grounds of her adultery (assuming he could prove it occurred). To understand both why the court reached the right result and why the result is somewhat absurd requires delving into the history of divorce law and its modern relics.

A Brief History of Fault-Based Divorce

Until more than halfway through the twentieth century, judicial divorce was only available on the basis of fault. Moreover, it wasn’t available to just anyone. Divorce was a remedy granted to an innocent spouse when the other spouse has breached some essential aspect of the marriage contract. And the essential aspects were defined by the legislature, not by the individual spouse seeking a legal exit from marriage.

In order to be entitled to a divorce, the plaintiff spouse had to prove the grounds for divorce that he or she alleged with corroborating evidence—confession by the defendant spouse was not sufficient. There was no such thing, in theory, as divorce by agreement. (In fact, couples colluded all the time, trumping up evidence of fault and putting on a show for the court.)

Traditional fault grounds for divorce included adultery, abandonment, neglect, and commission of a felony. Later grounds included intemperance and cruelty. But not every state was the same. More conservative states (bearing no relation to the red/blue divides of today) had fewer grounds and stricter residency requirements; more lenient states, the opposite. California had an expansive list of grounds from an early time, while New York allowed divorce only on grounds of adultery until almost 1970.

All states allowed divorce on grounds of adultery. Laws against adultery are a natural outgrowth of laws and customs insisting that marriages be monogamous. Thus adultery has been seen as a wrong in every society premised on monogamous relationships.

The law of husband and wife, borrowed in the early American codes virtually wholesale from English common law, has always included a duty of fidelity for both parties to a marriage. Marital duties are primarily enforced at divorce or separation, however, and thus adultery was considered a ground for divorce in every jurisdiction.

In states like New York that only allowed divorce on grounds of adultery, the law reflected a biblical principle that adultery is the only thing that would justify divorce. Because some of the restrictive states were densely populated, 25 percent of divorces granted nationwide at the turn of the twentieth century were on grounds of adultery, even though almost anyone who had another option pursued it.

Divorces premised on adultery were also subject to special rules in some jurisdictions. One of those rules, at issue in the New Hampshire case discussed at the beginning of the column, is the defense of recrimination. Divorce laws were heavily influenced by traditional morality. It shaped the grounds available, the evidentiary rules, the application of law to particular cases, and so on. It also partially explains the defense of recrimination, which means that a spouse who has committed adultery cannot be granted a divorce based on the other spouse’s adultery. The idea is that the adulterous petitioner is not innocent and therefore is not entitled to the remedy of divorce. In practice, the successful proof of this defense might mean that the couple has to stay married if their respective adulterous acts cancel each other out. (In some states, the defense of recrimination applies broadly to all grounds for divorce, while in others it is reserved for adultery divorces.)

Fast-Forward: No-Fault Divorce, and the Incomplete Revolution

Beginning in 1969, the tides of divorce law began to turn. The California legislature adopted the nation’s first no-fault divorce law, which abandoned the traditional fault-based system in favor of a system designed to gauge true marital breakdown—and to eliminate the aspects of a system that had become plagued with perjury and fraud. It thus provided only one ground for divorce: “irreconcilable differences.” In California’s wake, virtually every other state also adopted a no-fault ground—either in place of its traditional grounds or in addition. Some focused on a substantive standard of marital breakdown (like California’s), while others prescribed a period of separation. Both approaches had a common purpose—to identify marriages that could not be saved. (New York, strangely, did not add a true no-fault ground until 2010, roughly twenty-five years after the other forty-nine.)

Many states retained fault grounds when they adopted a no-fault ground, creating a sort of odd mixed system, where couples can fight about the basis for the divorce, even if they both want the divorce and are entitled to it. Most divorces today are no-fault, but when spouses do seek fault-based divorces, it is often for complex and sometimes messy reasons.

In some states, a fault-based divorce can be obtained more quickly, because there is no mandatory separation period. In others, an “innocent” spouse fares better in terms of custody, property division, and financial support than the one at “fault.” In still other instances, a spouse will seek a fault divorce because he or she simply wants public vindication of a wrong done to him or her by a cheating or abusive spouse.

Even in states that do not offer fault divorce as an option, or in cases in which the filing spouse does not pursue that option, adultery may affect divorce proceedings. In non-community property states, judges are given the power to equitably divide marital property upon divorce.

The equitable distribution process is guided by factors like need and fairness. But in a majority of states, judges may also consider marital fault in deciding how to equitably divide property or deciding whether to award alimony. In most cases, judges take fault into account only when the fault resulted in some tangible economic consequence—e.g., a husband’s physical cruelty toward his wife rendered her unable to work and therefore in greater need of alimony.

But at least a few jurisdictions permit consideration of any form of marital fault—including adultery—in determining marital property division and alimony. Though this is probably inconsistent with the modern theory of marriage—as a partnership that can be dissolved with consent of the parties—adultery can pose an obstacle to an easy escape.

Ross v. Ross: When Adultery Meets Adultery

This may have seemed like a long detour from Christopher Ross and his cheatin’ heart. But his case only makes sense against the backdrop of divorce law’s origins, which explain why his post-separation mattered.

Recall that his wife filed for divorce first—on both fault (but not adultery) and no-fault grounds. He counter-claimed for a divorce on fault grounds, alleging that she had committed adultery. So now they were both on record as wanting a divorce. But she, apparently, felt strongly that her petition for divorce should prevail. She thus filed a motion raising the defense of recrimination: he should not be able to seek a divorce based on her adultery because he had also committed adultery. The trial court granted her motion, finding that the defense of recrimination barred his cross-petition for divorce. But it still granted the couple a divorce, just on the no-fault grounds—irreconcilable differences—rather than either of their fault claims.

Christopher appealed. He didn’t just want a divorce—he wanted it based on her alleged adultery. The opinion does not disclose his reasons, but we might assume that there are some financial consequences that flow from the type of divorce—or that he just wanted the record to reflect that she committed adultery and ruined their marriage. He wouldn’t be the first divorcing spouse who acted from the heart rather than the head. But we just don’t know.

The court on appeal was asked whether Christopher should have been barred by the defense of recrimination. It had to decide first whether his new relationship constituted adultery, since he and Danielle had already separated and were moving concretely towards a divorce. He did not dispute that he was in a sexual relationship with someone other than Danielle. The statute speaks only of “adultery of either party,” without further elucidation. But the New Hampshire Supreme Court defined adultery in a relevant case as “voluntary sexual intercourse between a married man and someone other than his wife.”) The separation is irrelevant because until a couple has received a decree of dissolution (either divorce or annulment), they are legally married. So Christopher did commit adultery.

Did the timing matter for purposes of the recrimination defense? The state code states that a “divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of [the enumerated grounds],” including “[a]dultery of either party.” And in a prior opinion, the court had reasoned that “innocent” means “free from guilt,” and “[o]ur court has stated flatly that a spouse who is guilty of an offense against the other spouse, which would be grounds for divorce cannot himself obtain” a divorce. To sum it up, the court wrote: “In other words, recrimination is a defense against a spouse who is not innocent.”

This tells us that recrimination bars a suit for divorce, but does post-separation adultery count? Here, the court turned to treatises and other secondary sources to conclude that adultery triggers recrimination regardless of its timing.

Christopher argued that the timing is relevant because his adultery did not cause the breakdown of the marriage. But the court rejected his argument. Recrimination is about whether a party has a right to the court’s aid—whether the party is innocent enough to deserve help. “Causation,” the court conclude, “is not an element of the defense of recrimination.” When adultery is invoked as grounds for divorce, in contrast, it is implied that the reason adultery justifies divorce is because it has caused the breakdown of the marriage.

What’s the poor guy to do during a long and protracted divorce process, plagued with discovery requests and court appearances where nothing happens. Is he supposed to remain celibate to the bitter end? The court refused to answer this question, offering the familiar punt instead to the legislature. “Matters of public policy,” the court wrote, “are reserved for the legislature, and we therefore leave it to the task of addressing [Christopher’s] concerns.”


The court reached the right conclusion—the relevant New Hampshire law clearly dictated this result, and the court’s task was no more than statutory interpretation. But it seems strange that in 2016, almost fifty years after the country’s turn to no-fault divorce, cases are still decided on evidence about who slept with whom and when. It seems even more ridiculous when the fight is waged merely over the grounds for divorce and not whether the couple is permitted to divorce. The no-fault revolution was premised on the idea that the search for fault is illusory (marriages breakdown for complex reasons, and some marriages survive despite identifiable “fault”); the fight over fault requires the airing of the couple’s dirty laundry; and the evidence offered to prove fault is often fabricated. States that retain a mixed system of fault and no-fault grounds for divorce thus live in a strange world in which they both reject and embrace fault-based divorce. But the Ross court is right—fixing this is the job of the New Hampshire legislature.

And separated spouses beware—Facebook makes it easy to change your relationship status, but the law is not as forgiving.

  • G.N.M.

    Excellent article. California also now permits the parties to plead fraud in addition to irreconcilable differences.

  • Michael Marr

    In Georgia, adulterers can’t get alimony.