The breakup of a marriage can be one of the most difficult and painful experiences a person can suffer. This pain can be exacerbated by the discovery of a spouse’s infidelity. The initial reaction of most people is to confront his or her spouse immediately upon learning of the infidelity. This, often times, can result in a legal disadvantage to the innocent spouse.

Upon learning of your spouse’s infidelity, it is recommended that you take the following steps before you confront your spouse:

1. Consult a lawyer – Whether your spouse’s conduct amounts to adultery under law is an important legal consideration you must ascertain before proceeding. A lawyer should be able to provide you the guidance and knowledge to determine whether you have a basis for a divorce on adultery grounds. The lawyer can also provide you with valuable insight into the steps to be taken prior to disclosing your knowledge of the affair to your spouse. It is typically in your best interest to consult a lawyer early in order to safeguard your rights.
2. Collect financial information – Once he or she discovers that you are aware of his or her infidelity, the cheating spouse often times hides or conceals key information from the innocent spouse. It is essential for you to discretely obtain copies of important financial documentation, such as pay stubs, tax returns, bank account statements, investment information, credit card statements, retirement and pension plan statements, etc. You should use great caution and care to ensure that you obtain the copies without raising the suspicion of the cheating spouse, as the timing of your disclosure is critical.
3. Document valuable personal property – Often times, the cheating spouse will conceal and hide certain valuable property such as jewelry, paintings, rugs, collections, collectibles, etc. Even though the law imposes a restraining order on concealing and hiding assets, the restraining order is not enforceable until after the cheating suppose is served the divorce petition. Accordingly, it is important that you itemize and document these items by videotape or photography as evidence to the court of the cheating spouse’s concealment of assets.
4. Financial irregularities - As discretely as possible, it is recommended that you look for past and present financial irregularities as evidence of the adultery. This investigation should be limited to joint accounts you hold with your spouse. If your spouse maintains individual accounts you should not look at these accounts unless you consult with a lawyer first. Even if you know your spouse is password in order to enter the account, you may be violating a criminal statute by accessing the accounts.
5. Gather evidence of the adultery – Many times the innocent spouse looks “to catch his/her spouse in the act” of the affair and will follow or conduct surveillance. It is recommended that if the innocent spouse wants to conduct surveillance that he or she hire a licensed private investigator and not conduct the surveillance by his or herself nor by using a friend or family member. Due to the emotional nature of these situations, surveillance by the innocent spouse, a friend or a family member may result in a dangerous situation to the people involved. Accordingly, it is recommended that you use a licensed private investigator who is experienced in separating the emotions from the situation, and will provide the most effective surveillance possible. Sometimes spouses will use intercept the cheating spouse’s e-mails and phone calls, or record conversations between the cheating spouse and his or her paramour. Do not engage in any of these acts without consulting a lawyer first. Federal and state statutes create a criminal offense for intercepting phone and e-mail messages as well as recording conversations. Accordingly, it is important that you consult with a lawyer before engaging in any of these activities.
6. Consult your physician and/or therapist – The grief and pain associated with learning of a spouse’s infidelity can cause significant physical and mental injuries. It is not uncommon for the innocent spouse to suffer physical and emotional ailments as a result of learning of the affair. While it is important to document these ailments through a physician and/or counselor, it comes with a heavy cost. Your spouse may be allowed access to your past and present medical and counseling records. You should consult with your lawyer about ways to restrict access to the records.

While it may difficult to resist the temptation to disclose your knowledge of the affair to your spouse, the benefits of taking the above steps may make a difference for you in the divorce case. If you have any questions regarding a divorce, adultery or other fault grounds, please contact one of the attorneys at Hamblett & Kerrigan for a consultation.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo atkrauseo@nashualaw.com.