Evidence of an AffairWhen your suspicions are finally confirmed, you want to know all of the details.  How many times it happened, when it happened, where it happened, and every other detail you can think of. You want to read every text and scour the phone bills to see how many times they talked.  You think that if you know all the details, you can figure out exactly what went wrong in your relationship and how exactly to make them account for what they did to you.

The emotional roller coaster one goes through when learning of an affair is entirely understandable. The blame, the guilt, the denial, the insatiable need to know it all; these reactions are perfectly normal even though it may make you feel crazy.  It is entirely reasonable to want to know all the details, to go back in your mind to every instance when your spouse was home late, hid their phone from you, or flat-out lied to your face. All those nights you thought you were just being paranoid, it turns out that you weren’t.  You were right. They cheated. Does it help you mend emotionally to replay the details over and over again? Maybe, but it’s advisable to seek the assistance of a counselor to determine how one heals emotionally from the betrayal.

From a legal standpoint, knowing every detail may or may not have an impact on your case.  In reality, you will probably never know it all – and who wants to?!  Unfortunately, in this day and age, with applications and services such as Ashley Madison, Snap Chat, Tinder, and others, it seems that cheating is more the norm than ever before. Judges (more so in the urban settings) often appear to be immune to the proverbial smoking gun even when a spouse is caught red-handed.  In rural settings, you may often still get the “aha” moment where the affair is central to the Judge’s ruling.  In those rural settings they still believe that being true to your spouse is of utmost importance.  More often than not, however, most judges find that an affair is not a critical piece in a custody dispute unless there are exigent circumstances, such as the children were introduced to the paramour in some meaningful way. In fact, the most substantial relevancy that affairs have in the legal world is in spousal support, but even then its impact is dwindling.

Pursuant to North Carolina General Statutes §50-16.3A, which provides the law and guidelines for a judge awarding spousal support/alimony, “the court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors…If the court finds out that the dependent spouse participated in an act of illicit sexual behavior…during the marriage and prior to the date of separation, the court shall not award alimony.  If the court finds that the supporting spouse participated in an act of illicit sexual behavior…during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse.” From first glance, it appears that cheating spouses will get their desserts and will ultimately pay (at least financially) for their transgression. In reality, that may or may not be the case.

Even if the supporting spouse cheated and you, as the dependent spouse, were innocent, if the supporting spouse does not have the ability to pay alimony then you can potentially get nothing, except for the break-up. That seems inherently unfair, right?! Some argue that judges punish the offending spouse and award alimony even though that spouse may not have the ability to pay.  Those cases are more few and far between as adultery becomes more frequent and commonplace in domestic cases.

Though your first inclination is to remember every detail, every text message, and every call, and that information may still have an impact in your case, it may not be as critical as one would hope. Gathering evidence of the wrongful acts continues to be relevant to a spousal support determination.  In doing so, make sure any and all evidence that you gather was obtained legally. As mentioned above, most of the evidence will be stored on electronic devices (phones, tablets, computers, hard drives, etc.).  There are both federal and state laws that define how one can obtain evidence legally through these electronic means. You should seek an experienced family law attorney to make sure that you are gathering evidence legally to avoid both criminal and civil consequences.

What type of evidence can you gather to help support your adultery claim? In North Carolina, you need to show that your spouse has cheated by providing evidence that there was: (1) inclination and (2) opportunity.  Therefore, you do not need an actual picture of them in bed together but you need more than just your suspicion or even common sense.

Telephone Records: If you are on the account for his/her phone, you can obtain a copy of the records from the telephone provider.  The actual content of the text messages will not appear on the records (you will need to subpoena those records and there is limited window of time that such records are available) but you will receive the phone numbers for the incoming calls, outgoing calls, and text messages. These can help build a case for adultery.

Private Investigator: Hiring a Private Investigator may be the best way to legally confirm one’s suspicion of cheating.  As you expect, this individual can follow your spouse around and document their comings and goings.  They can catch them kissing their paramour, entering hotel rooms together, or going on dates. Again, you do not need to prove the act was done, merely that he/she was inclined to cheat and there was an opportunity to cheat.  Taking a picture of them holding hands walking into a hotel room is probably enough to convince a judge of what happened after the doors were closed. If you decide to take this route, make sure to hire a reputable private investigator that follows the rules of permissible surveillance so any evidence you obtain can be used in court.

Emails: So long as the emails are legally obtained (which is another topic), this is another type of evidence that can be crucial in proving the affair. If the cheating spouse and paramour were callous enough to communicate through either party’s work email you can subpoena that employer to obtain the email records. If they used their personal email addresses, there are other ways to obtain that information, through the use of discovery. While one party may “delete” the emails, in this digital day and age, it can be difficult to delete data such that it can never be retrieved.

These are not the only types of evidence that one can gather to strengthen a claim for alimony, but they are examples of the more prominent types of evidence obtained in adultery cases.  As every situation is unique, be sure to talk to an experienced family law attorney about your suspicions concerning your spouse’s adultery and how it may affect your case.

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