Lawyers are known for being very technical, and so it should come as no surprise that in many states adultery is clearly defined as vaginal penetration, which is rarely proven by actually catching someone in the actual act, but rather by showing that someone had both the opportunity and disposition to have an affair.  To meet this burden of proof, we often use private investigators, who may utilize GPS tracking devices to establish patterns, and do surveillance to obtain videos or photographs that may later prove useful in divorce court.   We also gather emails, text messages, cards, receipts for travel or hotels, and credit card statements showing meals out or gifts purchased in an attempt to calculate how much was spent on the paramour.  But clients rarely care about the money spent– they are more focused on the depth of the betrayal.

Those that have been betrayed by their spouses often care most about establishing a timeline.  For them, it is important to know when the affair began, and how– was it through a dating app, on Facebook, or did they meet organically?  Rarely do they ask why, probably because it is clear that there was some need that was not being met at home.  Unfortunately, however, more and more we see that many are having “emotional affairs” where a spouse has developed a deep emotional connection  with someone else, without actually becoming physically intimate.  Or, sometimes a spouse has simply become addicted to internet porn.  Then there is a growing use of the term “financial infidelity” where a spouse has either hidden accounts or undisclosed debt that jeopardizes the family’s finances.  None of these, however, qualify as “adultery” in divorce court, but does that really matter?

After much debate with my peers, although the law may not agree, I think the best definition I’ve found for what constitutes as cheating is whether you would feel betrayed if roles were reversed. This is way too subjective of a standard for the law to ever embrace, but I think it is definitely one worthy of consideration on a personal level.

Regardless of what the law says, once you feel betrayed by your spouse, it is hard to have intimacy with that person, whether emotional or physical.  Once the trust and respect in a relationship is broken, if it cannot be repaired, many will opt to cut their losses and end the marriage.

Ultimately, you have to define cheating for yourself, and make sure your partner is clear on that definition as well.  Don’t just assume you are on the same page, because reality is that some people don’t think it is a big deal to kiss a co-worker after one too many drinks at a happy hour, or to be addicted to porn, or have an emotional affair, or commit financial infidelity.   None of these things may matter to a real judge, but if it would break your heart to know your spouse did any of these things, then make that crystal clear in advance.

By Regina A. DeMeo, Esq.