U.S.A. Laws on Infidelity and Adultery

U.S.A. Infidelity Law

Updated Oct 2020.

By sharing this information with you, we hope you can be inspired to seek further information from your local legal counsel. As you can see, the law differs greatly state by state.

When is Adultery a Crime?

In some USA states, both people are guilty of adultery if one of them is married to someone else.

These state include: Alabama, Arizona, Florida, Georgia, Idaho, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Mississippi, New York, North Dakota, Oklahoma, South Carolina, Utah, Virginia and Wisconsin.

In 2013 Colorado repealed its anti-adultery law.

In other USA states, the rule only applies to a married woman.

Fornication laws, which effectively make all forms of sex outside marriage illegal : Idaho, Illinois, Massachusetts, Mississippi, South Carolina and Utah.

In Florida adultery (“Living in open adultery”, Art 798.01) is illegal; while cohabitation of unmarried couples was decriminalized in 2016.

Under the law of many states, a single act of adultery constitutes a crime, whereas in others, there must be an ongoing and notorious relationship.

The punishment set by statute may be greater for an individual who engages in repeated acts of adultery than for one who commits an isolated act.

Defenses

An individual who has been charged with committing adultery may have a valid legal defense, such as the failure or physical incapacity to consummate the sex act.

A woman is not guilty of adultery if the sex act resulted from rape.

Some states recognize ignorance of the accused regarding the marital status of his or her sexual partner as a defense.

In a few jurisdictions only the married party can be prosecuted for adultery. If the other party to the relationship is not married, he or she may be prosecuted for fornication instead of adultery.

 

Enforcement of Statutes

You will notice that most states have laws against infidelity, however these laws are rarely invoked. Traditionally, states advanced three goals in support of their adultery laws:

1. the prevention of disease and illegitimate children;
2. the preservation of the institution of marriage;
3. safeguarding of general community morals.

Courts in the jurisdictions still prohibiting adultery have openly questioned whether adultery laws in fact serve these goals.

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U.S.A. Infidelity Laws by State

Alabama

Section 4184 of the Code of Alabama provides that ‘if any man and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than $100, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months.

On the second conviction for the offense, with the same person, the offender must be fined not less than $300, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than 12 months; and for a third or any subsequent conviction with the same person, must be imprisoned in the penitentiary or sentenced to hard labor for the county for two years.”

In addition, http://laws.findlaw.com/US/471/222.html the predecessor to 182 was Art. VIII, 3, of the Alabama Constitution of 1875, which denied persons “convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or other crime punishable by imprisonment in the penitentiary” the right to register, vote, or hold public office. These offenses were largely, if not entirely, felonies.

The drafters of 182, which was adopted by the 1901 convention, expanded the list of enumerated crimes substantially to include the following: “treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, [and] crime against nature.

Arizona

Arizona State Legislature Arizona is clear on what is grounds for divorce, with ADULTERY

Sex with someone other than your spouse is a Class 3 misdemeanor here, punishable by up to 30 days behind bars. And not only will the spouse be penalized but also the other person.

25-903.  Dissolution of a covenant marriage; grounds Notwithstanding any law to the contrary, if a husband and wife have entered into a covenant marriage pursuant to this chapter the court shall not enter a decree of dissolution of marriage pursuant to chapter 3, article 2 of this title unless it finds any of the following:

1. The respondent spouse has committed adultery.

13-1408.  Adultery; classification; punishment; limitation on prosecutionA. A married person who has sexual intercourse with another than his or her spouse, and an unmarried person who has sexual intercourse with a married person not his or her spouse, commits adultery and is guilty of a class 3 misdemeanor. When the act is committed between parties only one of whom is married, both shall be punished.B. No prosecution for adultery shall be commenced except upon complaint of the husband or wife.

What Role Does Adultery Play in an Arizona Divorce?

Adultery occurs when someone who is legally married engages in a voluntary sexual encounter or relationship with someone other than the person’s legal spouse. The vast majority of divorces in Arizona are “no-fault,” which means that it’s not necessary to prove marital misconduct (like adultery), or that an innocent spouse was harmed. The courts won’t even consider evidence of wrongdoing. They will simply grant a divorce and end the marriage.

There is one exception to Arizona’s no-fault rule. Arizona allows people to obtain what are known as “covenant marriages.” These are marriages identical to all others except that the spouses have undergone special premarital counseling to strengthen their bond. If you have a covenant marriage rather than a typical civil marriage, then youare entitled to a fault-based divorce if your spouse has committed adultery.

 

• http://www.theblaze.com/stories/2012/01/13/cheating-arizona-wife-could-face-jail-time-under-states-anti-adultery-law/

Colorado

18-6-501 – Adultery. “Any sexual intercourse by a married person other than with that person’s spouse is adultery, which is prohibited.”

California

“Sexual intercourse by a married woman with a man other than her husband [is] regarded as an offense against public morals, not merely as a breach of the obligation of marriage” West’s California Digest.

Florida

Floridian adulterers can spend up to two months in jail and be charged up to $500.

http://laws.findlaw.com/US/379/184.html the challenged statute is a part of chapter 798 23150117entitled “Adultery and Fornication.”1 Section 798.01 forbids living in adultery and 798.02 proscribe lewd cohabitation.

Both sections are of general application, both require proof of intercourse to sustain a conviction, and both authorize imprisonment up to two years.2 Section 798.03, [379 U.S. 184, 186] also of general application, proscribes fornication3 and authorizes a three-month jail sentence. http://laws.findlaw.com/US/424/448.html (Section 61.08, Florida Statutes), a wife found guilty of adultery could not be awarded alimony.

Georgia

State might conclude that adultery is likely to injure third persons, in particular, spouses and children of persons who engage in extramarital affairs. The cheater could be find up to $1000 or receive a jail sentence of up to a year.

With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity [478 U.S. 186, 210] is warranted.

See Tr. of Oral Arg. 21-22. & http://laws.findlaw.com/US/292/216.html Section 966 (D.C. Code 1929, T. 14, 63) provides: A divorce from the bond of marriage may be granted only where one of the parties has committed adultery during the marriage: Provided, That in such case the [292 U.S. 216, 222] innocent party only may remarry, but nothing herein contained shall prevent the remarriage of the divorced parties to each other. …’ IN ADDITION, a statute of the [292 U.S. 216, 226] District provides for forfeiture of dower in case of the wife’s adultery during marriage, none denies dower to a widow because she had been guilty of adultery prior to the marriage with her late husband.

Hawaii

http://laws.findlaw.com/US/188/291.html ‘That under and by virtue of the Hawaiian law in force at the time said decree of divorce was granted and now in force, it is provided: ‘When a divorce is decreed for the adultery or other offense amounting thereto, of the wife, the husband shall hold her personal estate forever, and he shall hold her real estate so long as they shall live; and if he shall survive her, and there shall be issue of the marriage born alive, he shall hold her real estate for the term of his own life, as a tenant by the curtsey; provided that the court may make such reasonable provision for the divorced wife out of any real estate that may have belonged to her, as it may deem proper.’

Federal Law Against Adultery http://laws.findlaw.com/US/327/711.html sections of the Federal Criminal Code apply to the reservation, including not only the Assimilative Crimes Act, but also those making penal the offenses of rape, 4 assault with intent to [327 U.S. 711, 714] commit rape,5 having 23978068carnal knowledge of a girl,6 adultery7 and fornication. 8 years; and when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery.’ Criminal Code, 316, 35 Stat. 1149, 18 U.S.C. 516, 18 U.S.C.A. 516. [Footnote 8] ‘If any unmarried man or woman commits fornication, each shall be fined not more than $100, or imprisoned not more than six months.’ Criminal Code, 318, 35 Stat. 1149, 18 U.S.C. 518, 18 U.S.C.A. 518. Adultery: (1887) 24 Stat. 635, in connection with the amendment of bigamy statutes; (1909) 35 Stat. 1149.

Illinois

The consequences for adultery in Illinois is up to a year in jail for both cheaters.

•  http://laws.findlaw.com/US/236/140.html Congress had no power to punish immorality, and certainly did not intend by this act of June 25, 1910 (36 Stat. at L. 825, chap. 395, Comp. Stat. 1913, 8812), to make fornication or adultery, which was a state misdemeanor, a Federal felony, punishable able by $5,000 fine and five years’ imprisonment.

Idaho

Adultery is a felony that comes with a fine of up to $1,000 and as much as three years in jail.

Kansas

“Intercourse or sodomy” with someone other than your spouse is a Class C misdemeanor here, punishable by up to a month in jail and a fine of up to $500.

Louisiana

Divorce laws in Louisiana are governed by Article 103 of the state’s Civil Code.

Louisiana has only two fault-based grounds for divorce. They are adultery and felony conviction. If either of these apply to your situation, you do not have to wait the requisite amount of time before getting a divorce. It should be noted that an allegation of adultery can have an impact on the court’s decision to award alimony.

Massachusetts

It’s considered a felony with a fine of up to $500 and a jail sentence of up to three years.

Minnesota

“When a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.”

http://laws.findlaw.com/US/296/1.html Mason’s Minnesota Statutes 1927, 8601-8604. 24296214 The court is empowered upon divorce for any cause, except that of the wife’s adultery, to decree to the wife ‘such part of the personal and real estate of the husband, not exceeding in value one-third thereof, as it deems just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.

Mississippi

The Mississippi statutes say that cheaters “shall be fined in any sum not more than $500 each, and imprisoned in the county jail not more than six months.”

Michigan

Adultery has long been a felony. But when a judge warned that unfaithful spouses technically could be sentenced to life in prison, an obscure and seldom-used provision of the state’s criminal law became the subject of international scrutiny. READ MORE

“It’s a felony and a Class H offense to two-time your spouse here, but the price for your crime is “jail or other intermediate sanction.”

New Hampshire

“A person is guilty of a class B misdemeanor if, being a married person, he engages in sexual intercourse with another not his spouse or, being unmarried, engages in sexual intercourse with another known by him to be married.”

New York

Could result in as long as 3 months of jail time.

http://laws.findlaw.com/US/181/175.html against Frederick A. Bell, for a divorce from the bond of matrimony, for his adultery at Buffalo, in the county of Erie, in April and May 1890, and for alimony. [181 U.S. 175, 176]

New York http://laws.findlaw.com/US/160/531.html wherein she alleged that the defend- [160 U.S. 531, 533] ant, whose legal residence was still in the city of Elizabeth, had committed adultery with several persons on different occasions in the city of New York,

New York http://laws.findlaw.com/US/360/684.html Under provisions of the New York Education Law which were construed by the Court of Appeals of New York as requiring the denial of a license to show a motion picture when “its subject matter is adultery presented as being right and desirable for certain people under certain circumstances.

Nevada

To read the full text of the law on alimony in Nevada, see the Nevada Revised Statutes §125.150.

“Overview of Alimony in Nevada” In Nevada, a court granting a divorce can award alimony to the wife or husband if they don’t have the financial resources to pay their own expenses. Courts often award alimony in addition to a division of the couple’s property, particularly when one spouse has little or no income. Often, one spouse passed over education or career opportunities during the marriage to take care of the couple’s household and children. Alimony is awarded when courts decide that the spouse with more financial resources should be required to support the spouse with less financial resources. Alimony in Nevada can be periodic, meaning payments made on a monthly or annual basis, or lump-sum, which is usually a one-time payment. Periodic alimony payments usually end when the supported spouse gets remarried, or when either spouse dies. Courts can also award periodic alimony just for a certain period of time, or until the supported spouse is employed. Nevada courts use the following factors to determine whether alimony should be awarded:

• each spouse’s financial situation
• how much property each spouse owns
• the contributions each spouse made to the marriage, both financial and non-financial
• the length of the marriage
• the income, earning capacity, age and health of each spouse
• the couple’s standard of living during the marriage
• the career before the marriage of the spouse to receive alimony
• education or skills gained by each spouse during the marriage
• each spouse’s ability to work, and
• any other financial resources each spouse has.

If the financial circumstances of the spouses change, courts can modify (change) the alimony payments to account for the new circumstances. Courts don’t use a formula to calculate alimony in Nevada; each case is decided on its own. For more details on alimony in Nevada, read Understanding and Calculating Alimony in Nevada.

“What Else Does Adultery Impact?”] When a spouse commits adultery, Nevada courts can consider money spent on the affair when deciding how to divide the couple’s property. For example, if a cheating spouse spends the married couple’s savings on his or her lover – buying gifts, paying for hotel rooms and other aspects of the affair, a court may order that the cheating spouse receive a smaller portion of the couple’s remaining property. Even though Nevada has no-fault divorce, any financial misconduct, including money spent on an affair, can be considered in property division.

“How Does Adultery Impact Alimony in Nevada?”] Nevada courts aren’t allowed to consider either spouse’s misconduct during the marriage when deciding whether to award alimony. If the marriage ends because a spouse was unfaithful, that spouse may still be eligible for alimony if needed based on the factors listed above. When Nevada eliminated the requirement to show fault (misconduct) to get a divorce, changing to “no-fault” divorces only, it stopped considering misconduct, including adultery, when deciding alimony.

However, if a supported spouse enters into a relationship with a new partner and is being financially supported in the new relationship, Nevada courts may consider that relationship and the amount of support being received in order to determine if alimony is still appropriate.

North Carolina

Adultery can be used as a basis for divorce in North Carolina. In addition, North Carolina is one of the few states where an innocent spouse can sue a third-party that broke up the marriage.

Crime – Class 2 misdemeanor –  if any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.

• Criminal Conversation and Alienation of Affection”- In North Carolina, innocent spouses have the option of pursuing a civil lawsuit against their spouse’s lover and alleging “criminal conversation” or “alienation of affection.” Through such lawsuits, injured spouses can ask a judge or jury to order that the “defendant” (third-party lover) pay compensatory damages, which are money damages based on loss of consortium (marital affection and fellowship), mental anguish, humiliation, injury to health, and/or loss of support. Innocent spouses may also request punitive damages (money damages to punish defendants for their bad actions). Although criminal conversation and alienation of affection are very similar, they are actually two separate causes of action, which require different types of evidence.
• “What is Criminal Conversation?”] Although the name suggests that a crime has been committed, a “criminal conversation” action is not a criminal case. Instead, it’s actually a civil case, brought by a plaintiff (the party that was allegedly wronged) in a civil court. This is very different from a criminal case, which is tried in a criminal court by the state or some other public official. Defendants that have committed criminal conversation will not face criminal penalties or the possibility of jail time. Criminal conversation requires solid proof that your spouse engaged in sexual relations with the third-party defendant. Most commonly, evidence of adultery is obtained by hiring a private investigator to photograph or videotape the affair. The innocent spouse seeking damages must prove the following three elements: the innocent spouse is legally married to the adulterous spouse sexual intercourse took place between the adulterous spouse and a third-party individual (you can’t sue a business, such as a “gentlemen’s club” for criminal conversation) the sexual intercourse occurred during the marriage, not after separation, and the adulterous act(s) took place within North Carolina’s three-year “statute of limitations” (which means the lawsuit must be filed no more than three years from the last act of adultery). There is only one defense to criminal conversation; the spouse who was cheated on encouraged or consented to the adulterous affair before it took place.
• “What is Alienation of Affection?”] To prove alienation of affection, the plaintiff must show the following elements:

• • the spouses shared a loving marriage with genuine affection and love
  • the love and affection has been destroyed
  • the malicious behavior of the third party was the direct cause of the alienation leading to the end of the marriage, and
  • the innocent spouse has been damaged in some way.

As with criminal conversation, you must file suit for alienation of affection within three years from the date the last wrongful act occurred. Unlike criminal conversation, the innocent spouse/plaintiff doesn’t have to prove that actual sexual intercourse took place. The plaintiff only has to prove that the defendant’s actions caused alienation and led to the end of the marriage. This civil action can even be brought against a mother-in-law, for example, who advised the husband or wife to leave the marriage. As stated above, innocent spouses can recover both compensatory and punitive damages.

“Tort action against “3rd Party””] Under centuries-old North Carolina case law, Shackelford sued her husband’s alleged mistress, Anne Lundquist, for “alienation of affection,” charging that the woman broke up her 33-year marriage. http://abcnews.go.com/Business/TheLaw/wife-wins-million-husbands-alleged-mistress/story?id=10151957

Oklahoma

Adulterers face fines of up to $500 but also incarceration for up to five years.

• http://laws.findlaw.com/US/241/582.html Adultery is an offense against the marriage relation, and belongs to the class of subjects which each state controls in its own way. It is a 24628013punishable offense only where the common or statute law of the state makes it such; and where punishable, it is cognizable only in the courts of the state.

 

South Dakota

-http://laws.findlaw.com/US/241/602.html this is a prosecution for adultery committed on one of the Sioux Indian Reservations in the state of South Dakota. Both participants in the act were Indians belonging to that reservation. The statute upon which the prosecution is founded was originally adopted as part of the act of March 3, 1887 (chap. 397, 24 Stat. at L. 635), and is now 316 of the Penal Code [35 Stat. at L. 1149, chap. 321, Comp. Stat. 1913, 10,489]. The section makes no mention of Indians, and the question for decision is whether it embraces adultery committed by one Indian with another Indian, on an Indian reservation. The district court answered the question in the negative.

South Carolina

 “Any man or woman who shall be guilty of the crime of adultery or fornication shall be liable to indictment and, on conviction, shall be severally punished by a fine of not less than $100 nor more than $500 or imprisonment for not less than six months nor more than one year or by both fine and imprisonment, at the discretion of the court. …‘Adultery’ is the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.”

http://laws.findlaw.com/US/372/53.html respondent filed his answer to the complaint neither admitting nor denying the allegations of adultery

Utah

That whoever commits adultery shall be punished by imprisonment in the penitentiary not exceeding three years; and, when the act is committed between a married woman and a man who is unmarried, both parties to such act shall be deemed guilty of adultery; and when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery.’

• Hans Nielsen, having been duly convicted in this court of the crime of adultery, it is therefore ordered, adjudged, and decreed that the said Hans Nielsen be imprisoned in the penitentiary of the territory of Utah, at the county of Salt Lake, for the term of one hundred and twenty-five days.

 

Washington, DC

•  if the crime of adultery with which he was charged was included in the crime of unlawful cohabitation for which he was convicted and punished, that question is now to be considered,” 131 U.S., at 185 (emphasis added)), from its legal analysis, id., at 186-189, and from its repeated observations that cohabitation required proof of adultery, id., at 187, 189.

DOD

http://laws.findlaw.com/9th/2/909/375.html

Adultery is illegal in many states, the Department Defense does not subject the class of adulterers automatically to expanded security procedures.

West Virginia

http://laws.findlaw.com/US/232/619.html

The plaintiff (the defendant in error) at that time was the wife of a citizen of West Virginia, but, in consequence of his adultery, as she alleged, had separated from him and had gone to Virginia.

Wisconsin

There is a possibility to be find up to $10,000, and possibly 3 years jail.

Wyoming

http://laws.findlaw.com/US/161/65.html

Sections 1 and 2 relate to testimony in prosecutions for bigamy, polygamy, or unlawful cohabitation. Sections 3-5 define and punish the offenses of adultery, incest, and fornication.

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References:

• Friedman, Lawrence M. 2000. “A Dead Language: Divorce Law and Practice Before No-fault.” Virginia Law Review 86 (October): 1497–1536.
• Haggard, Melissa Ash. 1999. “Adultery: A Comparison of Military Law and State Law and the Controversy This Causes Under Our Constitution and Criminal Justice System.” Brandeis Law Journal 37 (spring): 469–83.
• http://usatoday30.usatoday.com/news/opinion/forum/2010-04-26-column26_ST_N.htm
• http://www.sfgate.com/news/article/Life-sentence-for-adultery-Could-be-Furor-in-2621946.php
• EPIS.us
• E.P.I.S. – Private Investigator Services providing Infidelity, Domestic Surveillance, Background Screening, Insurance Fraud and other information gathering.