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In general, I don’t support divorces, however, sometimes, it is the only way.
In the United States, there are two types of states, the ones what will take infidelity into consideration and the ones that do not when it comes to divorce. For those betrayed spouses living in states that do take infidelity into consideration, it’s very important for the betrayed spouse to prove that there was infidelity. It can mean living in poverty vs. getting a nice spousal support check every month. It can mean having your children living with you vs. children living with your cheating spouse and exposing them to OW/OM. It can mean getting the house you’re living in vs. moving in with your parents or other relatives.
Even though your state may be a no-fault divorce state, it doesn't mean that you or your spouse won't have to answer in some way for any misbehavior during the marriage. It's what divorce lawyers and courts refer to as marital misconduct and, in certain states, can effect the outcome of the division of property, an award of spousal support, or an award of attorney's fees for the betrayed spouse.
The following states take marital misconduct, especially misconduct that has economic burden (think drug use, gambling, etc.), into consideration when dividing marital or community property or in reimbursing the marital or community estate: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wisconsin. (I think there might be one or two more states).
The rationale behind this theory is that the victim-spouse (sometimes a betrayed spouse, sometimes a spouse who’s been taken advantage of financially by offender-spouse) is compelled to contribute more to the marriage because of the offender-spouse's misconduct, therefore he or she is entitled to have the offender-spouse's behavior taken into consideration when property or income are divided. Keep in mind that marital misconduct can include different types of conducts other than infidelity.
When it comes to infidelity, chances are, the wayward spouse will deny the affair for obvious reasons. Here is a partial list of ways to prove infidelity:
1) Witnesses. A mutual friend, family member, co-worker can testify in court that he or she saw and knows about the infidelity. This should be simple as long as such witnesses are willing to sworn to tell the truth and willing to testify in court.
2) Incriminating pictures. Either the ones taken willingly by wayward spouse and OM/OW or the ones taken by a private investigator.
3) Bank statements, credit card statements, phone records, motel receipts, etc. (A lot of these may fall under Federal Rule of Evidence 803(6) or other rules).
4) Proof of love letter and emails. The challenge is that this will be objected by the opposing party’s attorney, if there is one, as hearsay. With the right arguments, their objection will be overruled. There are two obstacles to overcome:
a. 1) Authenticity of the love letter or email. The burden is on the proponent (betrayed spouse) to prove that the love letter or the email is valid and not altered or modified. If betrayed spouse can show by preponderance of evidence, which is not a huge burden to overcome, that the email is valid and not modified, it should be admissible. If it’s introduced, the betrayed spouse can even read the content of the letter in court.
b. 2) Hearsay. The letter or email is NOT hearsay if it contains any admission by the party opponent, which in this case, would be the wayward spouse. If wayward spouse admits to an affair, hiding assets, his in-love state with OW/OM, etc. on the letter or email, it’s good to go. But, letter written by OM/OW cannot come in, unless it falls under one of the hearsay exceptions. Here is a short list of some of the exceptions that I can think of that apply:
i.Excited utterance: If the OW/OM wrote anything that can be defined as “excited utterance,” it can come in even if it is hearsay. An example would be if the OM wrote: “Oh my God!!! I just saw your husband at the grocery store…I hate him….I want you to be here now with me!”
ii.Present sense impression: If OW wrote anything in an email that says, for example: “I just took a pregnancy test and I am looking at the result now, it’s some what confusing, and it reads….”
iii. I can’t think of any other relevant exceptions at this moment. One will be surprised how many attorneys out there don’t know about these rules and laws, unless they are experienced litigation attorneys.
c. It would be great if the email was obtained by the betrayed spouse through a lawful way. If it’s obtained through deception or other “illegal” manner, it’s up to the discretion of the judge whether such evidence can be admitted or not and it varies from jurisdiction to jurisdiction.
What I typed above and the purpose of it is to educate betrayed spouses who are looking into divorce and hopefully allow them to ask the right questions when meeting with their attorneys. Don’t be surprised if they don’t know certain hearsay exceptions, but if you ask about them, they will get back to you after doing further research.
I, personally, think that infidelity should always taken into consideration in divorces to determine assets division, spousal support, child custody, child support, etc., but, unfortunately due to judicial efficiency along with other policy reasoning, many states don’t take it into considerations at all. It’s just an unfortunate fact and reality of today’s society.
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Joined: Dec 2002
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What's YOUR STORY, Complexity?
Are you a BS?
I made it happen..a joyful life..filled with peace, contentment, happiness and fabulocity.
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What's YOUR STORY, Complexity?
Are you a BS? Mimi, Chances are that this poster is best advisor, et. al., AGAIN. Pretty scary the guy/girl is so insistant on posting even when it knows it will be discovered AGAIN and deleted AGAIN and the words he/she/it types will only see the light of day for a few hours, yet...it keeps posting. (note...Justice2008) I even tried to discover where Best Advisor copied the above legal blurb as he/she/it is, no doubt, trying to increase the relative value of it's words to make it more difficult to "want" to delete them. Plagiarism, no doubt. BA didn't get an overnight law degree. Whatever. Mr. Wondering
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Joined: Apr 2005
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In general, I don’t support divorces, however, sometimes, it is the only way.
In the United States, there are two types of states, the ones what will take infidelity into consideration and the ones that do not when it comes to divorce. For those betrayed spouses living in states that do take infidelity into consideration, it’s very important for the betrayed spouse to prove that there was infidelity. It can mean living in poverty vs. getting a nice spousal support check every month. It can mean having your children living with you vs. children living with your cheating spouse and exposing them to OW/OM. It can mean getting the house you’re living in vs. moving in with your parents or other relatives.
Even though your state may be a no-fault divorce state, it doesn't mean that you or your spouse won't have to answer in some way for any misbehavior during the marriage. It's what divorce lawyers and courts refer to as marital misconduct and, in certain states, can effect the outcome of the division of property, an award of spousal support, or an award of attorney's fees for the betrayed spouse.
The following states take marital misconduct, especially misconduct that has economic burden (think drug use, gambling, etc.), into consideration when dividing marital or community property or in reimbursing the marital or community estate: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wisconsin. (I think there might be one or two more states).
The rationale behind this theory is that the victim-spouse (sometimes a betrayed spouse, sometimes a spouse who’s been taken advantage of financially by offender-spouse) is compelled to contribute more to the marriage because of the offender-spouse's misconduct, therefore he or she is entitled to have the offender-spouse's behavior taken into consideration when property or income are divided. Keep in mind that marital misconduct can include different types of conducts other than infidelity.
When it comes to infidelity, chances are, the wayward spouse will deny the affair for obvious reasons. Here is a partial list of ways to prove infidelity:
1) Witnesses. A mutual friend, family member, co-worker can testify in court that he or she saw and knows about the infidelity. This should be simple as long as such witnesses are willing to sworn to tell the truth and willing to testify in court.
2) Incriminating pictures. Either the ones taken willingly by wayward spouse and OM/OW or the ones taken by a private investigator.
3) Bank statements, credit card statements, phone records, motel receipts, etc. (A lot of these may fall under Federal Rule of Evidence 803(6) or other rules).
4) Proof of love letter and emails. The challenge is that this will be objected by the opposing party’s attorney, if there is one, as hearsay. With the right arguments, their objection will be overruled. There are two obstacles to overcome:
a. 1) Authenticity of the love letter or email. The burden is on the proponent (betrayed spouse) to prove that the love letter or the email is valid and not altered or modified. If betrayed spouse can show by preponderance of evidence, which is not a huge burden to overcome, that the email is valid and not modified, it should be admissible. If it’s introduced, the betrayed spouse can even read the content of the letter in court.
b. 2) Hearsay. The letter or email is NOT hearsay if it contains any admission by the party opponent, which in this case, would be the wayward spouse. If wayward spouse admits to an affair, hiding assets, his in-love state with OW/OM, etc. on the letter or email, it’s good to go. But, letter written by OM/OW cannot come in, unless it falls under one of the hearsay exceptions. Here is a short list of some of the exceptions that I can think of that apply:
i.Excited utterance: If the OW/OM wrote anything that can be defined as “excited utterance,” it can come in even if it is hearsay. An example would be if the OM wrote: “Oh my God!!! I just saw your husband at the grocery store…I hate him….I want you to be here now with me!”
ii.Present sense impression: If OW wrote anything in an email that says, for example: “I just took a pregnancy test and I am looking at the result now, it’s some what confusing, and it reads….”
iii. I can’t think of any other relevant exceptions at this moment. One will be surprised how many attorneys out there don’t know about these rules and laws, unless they are experienced litigation attorneys.
c. It would be great if the email was obtained by the betrayed spouse through a lawful way. If it’s obtained through deception or other “illegal” manner, it’s up to the discretion of the judge whether such evidence can be admitted or not and it varies from jurisdiction to jurisdiction.
What I typed above and the purpose of it is to educate betrayed spouses who are looking into divorce and hopefully allow them to ask the right questions when meeting with their attorneys. Don’t be surprised if they don’t know certain hearsay exceptions, but if you ask about them, they will get back to you after doing further research.
I, personally, think that infidelity should always taken into consideration in divorces to determine assets division, spousal support, child custody, child support, etc., but, unfortunately due to judicial efficiency along with other policy reasoning, many states don’t take it into considerations at all. It’s just an unfortunate fact and reality of today’s society. Schoolbus, ouch! <img src="/ubbt/images/graemlins/wink.gif" alt="" />
A smooth sea never made a skilled mariner.
~ English proverb Neak's Story
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Joined: Jan 2006
Posts: 3,093
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Sorry, but the shoe fits.
Lucky to be where I am, in a safe place to get marriage-related support.
Recovered.
Happy.
Most recent D-day Fall 2005
Our new marriage began that day. Not easily, but it did happen.
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really? I was wondering why the posts disappeared. Too funny.
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complexity,
It is okay to utilize resources.
It is not okay to fail to cite them.
Far better to make the simple citation and make it known, than to be called out on this. True scholars acknowlege source their work. It would be right and just to do that in your post. The "edit" feature is available to you. Perhaps you would might like to indulge in its use to add a citation and honor the original author's hard work.
SB
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Well, I guess chrisner had it right after all...I thought it was someone else altogether! Here we go again!! <img src="/ubbt/images/graemlins/rolleyes.gif" alt="" />
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Joined: Dec 2002
Posts: 15,310
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Mimi,
Chances are that this poster is best advisor, et. al., AGAIN. That's EXACTLY what I was thinking..that's why I asked.. He/she was starting to post on Not2's thread with the same STYLE as BEFORE... <img src="/ubbt/images/graemlins/rolleyes.gif" alt="" />
I made it happen..a joyful life..filled with peace, contentment, happiness and fabulocity.
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Joined: Apr 2001
Posts: 92,985 Likes: 1
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"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena.." Theodore Roosevelt Exposure 101
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Thanks for pointing this out. I deleted my responses to Complexity.
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Looks like lots of us had the same thought about who this poster might be. I know I did! Eeeeek! Group think!!! LOL!!!!! <img src="/ubbt/images/graemlins/grin.gif" alt="" /> <img src="/ubbt/images/graemlins/grin.gif" alt="" /> <img src="/ubbt/images/graemlins/grin.gif" alt="" /> <img src="/ubbt/images/graemlins/grin.gif" alt="" /> <img src="/ubbt/images/graemlins/grin.gif" alt="" /> <img src="/ubbt/images/graemlins/grin.gif" alt="" /> <img src="/ubbt/images/graemlins/grin.gif" alt="" /> <img src="/ubbt/images/graemlins/grin.gif" alt="" />
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Group Think!!!!
LMAO!!!!!!!
BW(me)
DDay EA 4/05
DDay PA 6/05
In recovery
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Only two paragraphs that start with “Even though…” and “The rationale…” came from internet sources (I needed it because I don’t know the states that recognize marital misconduct from the top of my head, and they include the rationale, which I thought was very well explained, probably much more clear than I could have done, so, I included it too.), the rest all came from me. If anyone in here needs further elaboration or explanation of what I have written above, or if you have a situation that’s not covered above, please let me know, I’ll try my best to explain.
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