Alabama Divorce – Ashley Madison and Adultery
Over the last few weeks the topic of the hacking of the Ashley Madison website, and the subsequent release of personal information, including email addresses for subscribers has set off a flurry of activity in any number of directions, many of which are associated with adultery and divorce. We can only imagine how many spouses in Alabama have stared into the computer screen searching for their spouses email address among those who have been exposed by the release of information. Because of these recent events we were compelled to address the topic of adultery in relation to Alabama divorces, and what, if any, impact the release of act Ashley Madison information may have in Alabama.
An article in the UK Edition of the International Business Times points out that Alabama has, “the highest levels of credit card activity on the extra-marital cheating website Ashley Madison among all 50 states.
ADULTERY AS GROUNDS FOR DIVORCE IN ALABAMA
Alabama law recognizes adultery as a ground for divorce. Alabama Code § 30-2-1 list numerous grounds for divorce. Included among those grounds is adultery, although the term is not defined in the code section. It is interesting to note that the Alabama Criminal Code retains the criminal offense of adultery, Class B misdemeanor. Under Alabama Code § 13A-13-2, the offense of adultery is committed when a person engages in sexual intercourse with another person who is not his spouse and lives in cohabitation without other person when he or that other person is married. Based upon the definition found in the Criminal Code as well as case interpretations it seems evident that at least one of the partners engaged in the adultery must be a married person, but it is not required that both be married.
PROOF OF ADULTERY IN AN ALABAMA DIVORCE CASE
The recent scandal related to Ashley Madison information leaks raises a number of concerns and questions about the level of proof necessary to prove adultery as a grounds for divorce. It is safe to say that the fact that a spouses email address or personal information is listed as being a member of the Ashley Madison website would not be enough in and of itself to prove adultery as a grounds for divorce. That being said, the Ashley Madison information does prove to be useful in the context of an Alabama divorce case in that it may certainly be an indicator that would prompt a party to investigate further into the conduct of their spouse. Participating as a member of the Ashley Madison website could be a symptom of a bigger problem, or might reveal the need to investigate further.
In order for an illicit sexual encounter to constitute adultery to the point it may be used as a grounds for divorce is necessary that it be more than just a single act of illicit sexual intercourse without more. In general, Alabama law requires that there be some proof of either an expressed or implied agreement between the two persons committing adultery that the relationship will continue to some degree based on the availability of the two parties to participate. It should also be kept in mind that in order to prove adultery there must be actual proof of at least one act of illicit sexual intercourse.
ADULTERY AND CHILD CUSTODY DECISIONS IN THE ALABAMA DIVORCE
Alabama law gives neither parent priority in an initial custody determination. In an initial custody determination each parent stands equal to the other and the court must balance all the evidence to determine what is in the best interest of the minor child or children involved. In making this determination the trial court looks at numerous factors having to do with the parties as well as the children. However, one such factor which is been recognized as a legitimate factor for the trial court to consider is evidence of adultery. We can safely say that adultery alone would almost certainly not be the deciding factor in a custody determination. However, it is a factor and based upon the particular facts of the case it may be a significant factor. Where the adulterous behavior bleeds over into the life of the family, adultery becomes a more significant factor in a child custody determination. Where a parent is proven to have placed the adulterous affair and their participation in it over the best interest of their children would certainly be an unfavorable factor as to that parent. For example, where one parent who is engaged in an adulterous affair leaves the children alone at home, or abandons their household duties in order to engage in the affair, leaving the family unwashed, unfed, or otherwise not taken care of, this would be a significant factor weighing against that parent.
ADULTERY AND PROPERTY SETTLEMENTS IN ALABAMA DIVORCE LAW
Similar to its effect on child custody, adultery also has an effect on a trial court’s determination as to the proper and equitable division of marital property in a property settlement. Without question, the trial court in Alabama can take in the consideration of parties behavior in engaging in an adulterous affair as a factor to be considered when determining which party receives what property from the marital estate.
ADULTERY AS THE FACTOR BRINGING ABOUT THE DOWNFALL OF THE MARRIAGE
As a factor in a divorce, adultery plays its most significant role in situations where the adulterous affair was the principal calls of the end of the marriage. In a number of Alabama appellate court cases it has been recognized that although there was evidence in the case that other problems existed between the husband and wife, that one of the others engaging in an extramarital relationship stood out as the principal cause of the end of the marriage. This situation is contrasted to a situation where the other problems in the marriage are so overwhelming that it appears that the adulterous affair is simply a byproduct of an already collapsing marital relationship. The difference between these two scenarios is not always easy to decipher. In situations such as these the advice and assistance of an experienced Alabama divorce lawyer is critical.
PLEADING THE FIFTH AMENDMENT TO QUESTIONS ABOUT ADULTERY
Because adultery is still a criminal offense in the State of Alabama, a person may rightfully claim their Fifth Amendment rights not to be compelled to testify against themselves when asked questions as to their committing adultery. However, because the crime of adultery is a misdemeanor in Alabama, and therefore the statute of limitations is one year, Alabama Appellate courts have held that a person is not entitled to invoke their privilege against self-incrimination regarding adultery where it is committed more than one year before the inquiry is made either at a deposition or in trial. See Ex parte Moore, 804 So.2d 245 (Ala.Civ.App.2001).
This issue comes to the forefront in a number of ways, and does not always strictly applied to the parties in the case. Many times a party in a divorce where there is suspected adultery will take actions to depose or obtain testimony from the adulterous spouses’ partner in the adultery. In these circumstances is not uncommon for the nonparty participant in the adultery to seek their own legal counsel to advise them as to their rights as a nonparty witness.
Needless to say,the Ashley Madison fiasco will cause many a spouse to take note of their partners activities. Unfortunately, it’s certain that at least some of those people will discover that their spouse is not been faithful or at least will suspect bad behavior. If you find yourself in this situation our advice is to talk to an Alabama divorce lawyer. This is not to say that divorce is the only or the answer to such a situation. It is saying that an Alabama divorce lawyer can tell you your options and tell you things that you can do in order to protect yourself if that eventuality occurs.
The lawyers at Bradford Ladner LLP handle divorce and family law matters in all State Courts and Alabama Counties. Call today for a consultation.
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