Your spouse cheated on you and you want a divorce. You can’t possibly see staying in your marriage now that you know your spouse has been unfaithful, and you want to make sure you get your fair share during the divorce process. So, what do you need to do in order to prove that your spouse committed adultery in Illinois?
How Adultery Is (and Isn’t) Relevant to an Illinois Divorce
Before we delve into the means that are available for proving adultery, it is important to be clear on how proving adultery is and isn’t relevant to getting a divorce in Illinois.
As we previously discussed, under revisions to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) that took effect in 2016, adultery is no longer grounds to file for divorce. Illinois is now a “no-fault” divorce state, which means that all divorce filings are based on the grounds of “irreconcilable differences.” So, while you can certainly decide to file for divorce because your spouse cheated on you, from a legal perspective, your spouse’s adultery simply provides the basis for your assertion of irreconcilable differences (or an “irretrievable breakdown of the marriage”).
Similarly, Illinois law provides that adultery should not play a role with regard to child support or alimony. In all cases, child support is determined according to a statutory formula, and Illinois’s alimony calculations are all based on need, not “marital fault.” So, how, if at all, is your spouse’s adultery relevant to your divorce?
- Dissipation of Assets – The most direct (and most common) way that adultery comes into play during divorces in Illinois is as a result of the dissipation of assets. In short, this means that your spouse spent money on his or her boyfriend or girlfriend, and now you are entitled to recoup your share of the money that was spent. The dissipated assets will be subtracted from your spouse’s share of your marital property, and then they will be divided consistent with your overall property distribution.
- Child Custody – In Illinois, all child custody determinations must be made based upon the “best interests” of the couple’s children. The law outlines several factors to be considered in determining what is in a child’s interests, and these factors include things like the circumstances of the child’s home life, the child’s relationship with each parent, and each parent’s willingness to help foster a relationship between the child and the other parent. If it can be shown that your spouse’s adultery has had a negative effect on your children and/or is likely to do so in the future, this could affect the “best interests” analysis. However, it should be noted that adultery is certainly not a bar to securing custody or visitation rights, and the relevance of your spouse’s cheating, if any, will be based on any direct effects on your children (not on you personally).
With these considerations in mind, is it worth trying to prove your spouse’s adultery? Maybe. To determine what you should do about your spouse’s adultery (if anything), you should discuss your situation with your divorce attorney.
5 Potential Ways to Prove Adultery in Illinois Before or During a Divorce
Let’s assume that it makes sense to prove that your spouse has been cheating on you. What means are available to prove adultery in Illinois?
1. Social Media
With increasing frequency, social media is playing a central role in the divorce process. Divorcing spouses can use social media in a variety of different ways, including to prove an extramarital affair. While you need to be very careful about accessing your spouse’s social media accounts (even if you know his or her password) – in fact, this is not something you should do until you speak with an attorney – anything that your spouse has made publicly available is fair game. This includes photos, videos, written captions, and any other information posted to Facebook, Twitter, Instagram, or any other social media platform.
2. Bank Account and Credit Card Statements
If your spouse made purchases using your joint bank accounts or credit cards, then your account statements may serve as evidence of his or her adultery as well. Purchases of jewelry, luxury items, and other items not accounted for at home may all help point toward your husband’s or wife’s affair. The same goes for hotel rooms, travel costs, and other unexplained expenses.
3. Computer Forensics
While here, too, you need to be careful, a forensic examination of your home computer could provide another source of evidence of your spouse’s affair. From emails and chats to search histories and downloaded photos, there are a variety of types of electronic data that could potentially be used as evidence of adultery during your divorce.
4. Private Investigation
Of course, one of the best ways to prove adultery is to catch your spouse in the act. However, under no circumstances is this something you should try to do yourself. Your attorney can hire a private investigator, and using information you provide as well as information he or she gathers from other sources, the investigator can capture photos and video proving your spouse’s extramarital affair.
5. Formal Legal Means
A divorce is a formal legal process; and, during the process, you will be able to gather evidence from your spouse through formal legal means. Potential options for securing evidence of adultery during the divorce process include:
- Taking your spouse’s deposition under oath
- Requesting your spouse’s phone records
- Seeking financial information for accounts managed and accessible solely by your spouse
Of course, these steps can add to the duration and hostility of the process, and these are factors to consider when weighing your options as well. Once again, to determine what is in your best interests based on your personal circumstances, you should speak with an experienced local divorce attorney.
Schedule a Free Initial Consultation in Gurnee, IL
If you would like to speak with an attorney about proving your spouse’s adultery in Gurnee, IL, we encourage you to contact us for a free, no-obligation consultation. To schedule a confidential appointment with divorce attorney Deanna J. Bowen, give us a call at 847-623-4002 today.