I recently received this question:
I am seeking a divorce for adultery. I have no physical proof of this but there have been a number of emails planning to meet with escorts. Can I go through with divorce without solid proof or do I need to find some other means? Will we have to agree on no fault in order for it to get done?
To obtain a divorce on adultery grounds you will need more evidence than some e-mails. Often times, people may make the plans, but fail to follow through due to guilt or some other reason. While that doesn’t make them a great husband or wife, it doesn’t result in your ability to pursue a divorce on adultery grounds for an attempted adultery. That said, you also don’t need to have an explicit sex tape from your spouse’s indiscretions (though it would certainly be an easy adultery case to make).
The type of proof that you will need typically is made up of two components: motive and opportunity. In your example, you probably have motive. Your spouse’s emails show that he/she has an inclination to commit adultery. They are actively seeking an affair. This could also be shown by witness testimony or photographs of your spouse on a date with another person, holding hands walking through the park, telephone records showing numerous calls and text messages to one another. All of this by itself does not prove adultery. You need step 2: the opportunity.
Opportunity is where your spouse and his/her new “friend” are together, privately, in a place where they have a chance to consummate the affair. So if all you can prove is that they are having dinner together regularly, then you probably don’t have a case. However, if they spend a lot of time together at the friend’s apartment and no one else is home with them, in sum with the motive evidence, you probably have a solid case for divorce on grounds of adultery.