Forward Thinking Family Law Since 1994

What If I Have Been Unfaithful During the Marriage

All states in the United States have adopted no fault divorce. This means that even if you were the "guilty party," meaning that you engaged in some bad conduct during the marriage, you can still file for divorce.

Some clients are concerned that if they begin a divorce and they have been guilty of adultery, that their spouse will turn them in to the prosecutor. Should they stay with their spouse to avoid being charged with a criminal offense?

In Michigan, adultery is still a criminal offense. There are a lot of old statutes on the books that are no longer enforced. We have a conservative legislature that would not want to spend their resources repealing an old law that might appear as though they are supporting extramarital relations. In over 33 years of practice, I have witnessed 100's of incidents of adultery in my practice. I have not witnessed or even heard of one prosecution for adultery.

I was surprised recently, when a prospective client reported being terrorized by his wife, who assured him that if he left her or started a divorce, that she would bring criminal charged against him.

What to do? I called the local prosecutor who indicated that such a charge is rare. While he could not rule out that he would never authorize such charges, he pointed out that part of his job is to allocate resources to protect the public. Adultery is not a crime worthy of devoting police resources to investigate or court resources to prosecute. In general, judges and prosecutors believe that adultery is a sign of a damaged relationship; not a crime.

While it is possible in another county, that the judges or the prosecutor may take a more traditional view of such behavior, it is unlikely.

In general, it is important to weigh whether the marital relationship has deteriorated to such a degree that it takes a threat of prosecution to keep one partner in the marriage. If that is the tie that binds, then the spouses need to assess whether that it makes sense to stay together.

They should attempt marriage counseling to determine whether there are sufficient ties to stay together. A good individual counselor may also be needed to help them each explore what life could be like living apart.