Upon learning of your spouse's infidelity it is recommended that you take the following steps before you confront your spouse:
• Consult a lawyer – Whether your spouse's conduct amounts to adultery under law is an important legal consideration you must ascertain before proceeding. A lawyer should be able to provide you the guidance and knowledge to determine whether you have a basis for a divorce on the grounds of adultery. The lawyer can also provide you with valuable insight into the steps to be taken prior to disclosing your knowledge of the affair to your spouse. It is typically in your best interest to consult a lawyer early in order to know your legal rights to protect you and your family.
• Collect financial information – Once the cheating spouse discovers that you are aware of his or her infidelity, the cheating spouse often hides or conceals key information from the innocent spouse. It is important for you to discretely obtain copies of significant financial documents such as pay stubs, tax returns, bank account statements, credit card statements, retirement and pension plan statements, etc. You should use great caution and care to ensure that you obtain the copies of the documents without raising the suspicion of the cheating spouse, as the timing of the disclosure of your knowledge of the affair is critical.
• Document valuable personal property – Often the cheating spouse will conceal or hide certain valuable property such as jewelry, paintings, rugs, collections, collectibles, etc. Even though the law imposes a restraining order on concealing and hiding assets, the restraining order is not enforceable until after the cheating spouse is served the divorce petition. Accordingly, it is important that you itemize and document these items via videotape or photography as evidence to the court of the cheating spouse's concealment of assets.
• Financial irregularities - As discretely as possible, it is recommended that you look for past and present financial irregularities as evidence of the adultery. This investigation should be limited to joint accounts you hold with your spouse. If your spouse maintains individual accounts you should not look at these accounts unless you consult with a lawyer first. Even if you know your spouse's password for the account, you may be violating a criminal statute by accessing the accounts.
• Gather evidence of the adultery – Many times the innocent spouse looks “to catch his/her spouse in the act” of the adultery and will follow them or conduct surveillance. It is recommended that, if the innocent spouse wants to conduct surveillance, he/she hire a licensed private investigator and not conduct the surveillance by him/herself or by using a friend or family member. Due to the emotional nature of these situations, surveillance by the innocent spouse, a friend or a family member may result in a dangerous situation. In order to avoid potential criminal acts, it is recommended that an experienced licensed private investigator, not emotionally involved with the situation, be used. Sometimes a spouse will intercept the cheating spouse's e-mails and phone calls as well as record conversations between the cheating spouse and his/her paramour. Do not engage in any of these acts without consulting a lawyer first. Federal and state statutes create a criminal offense for intercepting phone and e-mail messages as well as recording conversations. Accordingly, it is important that you consult with a lawyer before engaging in any of these activities.
• Consult your physician and/or therapist – The grief and pain associated with learning of a spouse's infidelity can cause significant physical and mental pain. It is not uncommon for the innocent spouse to suffer physical and emotional ailments as a result of learning of his or her spouse's infidelity. It is important that these ailments be documented by a physician and/or counselor as this may be used in the adultery proceedings as evidence of the harm you suffered. You must be aware that the medical and counseling records will be made available to your spouse to review as part of the divorce proceedings.
While not disclosing the knowledge of the affair to your spouse may be difficult, the benefits of taking the above steps first may make a difference for you in the divorce case. If you have any questions regarding a divorce, whether it is on adultery or other grounds, please contact one of the qualified attorneys at Hamblett and Kerrigan for a consultation.
Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. You can reach Attorney Rauseo at firstname.lastname@example.org.