# Does sex with STBX actually impact divorce or is that TAM urban legend?



## oldshirt (Apr 1, 2017)

It is very common to see people advise someone not to sleep with a WS if one is seriously considering divorce as that will be considered "forgiveness" by the courts. 

Can anyone verify that this is an actual thing and can anyone cite an actual case where having sex with a WS negatively impacted their court case?

I am not a lawyer and have never divorced so I do not have any first hand knowledge of the veracity of those claims and wondered if anyone had any confirmation if that is true or not. 

I have several questions about these claims. 

The first most obvious is how would a judge even know if a couple has had sex and on what date(s). I certainly hope that in 2019 that judges are not actually asking divorcing couples in open court when they had sex :-O

Then how can either party verify that they had sex or what is stopping anyone from simply saying that they did or that they did not? 

And most importantly, why would a court even care and why would it impact free legal system where people are free to divorce as they please regardless of when the last time they had sex was????? 

Does a divorce case really even have room for "forgiveness?" I mean either someone wants to obtain a divorce or they don't. If someone wants a divorce and is willing to pay the court fees and fill out the proper paperwork will be given one. If both parties agree to withdraw the petition and drop the case, the case will be dropped. 

I personally have never once in my 55 years ever heard of a divorce case being thrown out and a divorce denied because the couple had sex at some point after Dday. 

Conversely, I have read countless accounts of couples having sex at some point after Dday and have even heard of people I know IRL that had sex prior to the final decree. 

And let's keep in mind that judges are human and most likely understand people scoring some poon. Are they really going to stand up there in open court with is being officially recorded for public record and tell someone that they are going to ding them legally (and presumably financially) for getting some tail during a turbulent time in their marriage/divorce? 

If you think about in terms of a modern, western, legal system, it makes absolutely no sense. But there are absolutely laws and legal concepts that make little sense so that is why I am asking.

Does anyone have any substantiated accounts where someone had their divorce case negatively impacted due to having sex with their STBX or is this some kind of myth or urban legend that can be put to bed?


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## oldshirt (Apr 1, 2017)

I should probably clarify that I am not advocating sex with a WS or STBX. There are likely a million reasons a person would not want to in the first place. 

But I seriously question whether it would amount to a hill of beans legally if someone did.


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## MattMatt (May 19, 2012)

It is very much the case under UK divorce laws.

If a person has sexual contact with their spouse after they have found out their spouse had cheated on them they would be seen to have forgiven their spouse.

As a result they could not divorce on the grounds of adultery.

However it would not mean they could not use unreasonable behaviour as grounds for divorce.


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## notmyjamie (Feb 5, 2019)

A quick google search found this site: https://hoflaw.com/condonation-don-t-legally-forgive-his-adultery-by-sleeping-with-him/ which is talking specifically about Virginia but might answer some of your questions.


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## EleGirl (Dec 3, 2011)

Depends on the laws where you live. If you live in a no-fault state, it does not matter because you cannot use adultery as the basis for the divorce. If you live in a state that has at-fault divorce, then it could matter.

https://www.nyc-divorces.com/blog/2...rounds-for-filing-a-divorce-in-new-york.shtml

https://www.parkmanwhite.com/sex-forgives-adultery/

https://mtlawoffice.com/news/are-you-forgiving-your-spouses-adultery-your-divorce-case-may-suffer 

You should probably talk to a lawyer about how your state and your local judges handle this.


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## Bluesclues (Mar 30, 2016)

I have always wondered that too. I mean I realize some states have that on the books, but how do you prove that? It is he said/she said. In states that allow infidelity as a fault most people don’t go that route because the burden of proof is crazy - you basically need video tape of the act itself. Text messages, emails, even PI video of them holding hands and kissing entering a hotel are not enough to prove it in court. So why do be BS get so scared off by this?


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## EleGirl (Dec 3, 2011)

*"Defenses to an Adultery Charge. *Virginia law provides several possible defenses to a charge of adultery. The successful establishment of any one of these defenses will bar the entry of divorce on the ground of adultery:

Condonation. Condonation occurs when the parties voluntarily resume sexual relations and continue living together after the innocent spouse learns of the adultery.

Connivance/Procurement. Connivance or procurement occurs when the “innocent” spouse actually encourages or facilitates the adultery.

Recrimination. Recrimination is proof that the accusing spouse is guilty of one of the fault-based grounds for divorce (cruelty, adultery or desertion). For example, if the wife is accusing her husband of adultery, but the husband can prove that his wife also engaged in adultery, then the husband could use the defense of “recrimination.”

Time-Barred. Adultery has a five-year statute of limitations as a divorce ground in Virginia, which means that if the divorce suit is filed more than five years after the adultery, the divorce will not be granted on the adultery ground."

https://www.livesaymyers.com/divorce-lawyers/adultery/


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## oldshirt (Apr 1, 2017)

OK there is some good info there that is at least substantive showing it "can" be used if the conditions permit. 

But I am kind of with Blues in wondering if it is ever actually used in real world case in the last 10-20 years and if so if there has ever been any significant impact in outcome. 

Is a judge really going to ask someone in open court if they slept with their WS since Dday and then point a finger at them and tell them they aren't getting the sleeper sofa because of it?

And unless it can be proven that Dday was 10+ months ago and there is a new born baby with a positive DNA paternity test sitting there in court, how is anyone going to either prove or disprove that post Dday sex took place? WS's obviously lie and could sit there and say they had sex. And if it is in the best interest of a pissed off BS to say they didn't, they could lie just as easily. 

It makes no sense to me and I question how realistic the concern actually is. 

However, there are a lot of legal things that make little to know sense. 

This is why it is best to always advise competent legal guidance by a divorce attorney that practices in the local jurisdiction. 

I'm assuming very few judges could care less whether a divorcing couple got it on or not......but some might. 

The local divorce attorneys would be the ones that would know and could advise.


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## oldshirt (Apr 1, 2017)

notmyjamie said:


> A quick google search found this site: https://hoflaw.com/condonation-don-t-legally-forgive-his-adultery-by-sleeping-with-him/ which is talking specifically about Virginia but might answer some of your questions.


What struck me funny as I was reading that is I was getting the impression that it is really in the WS's interests to score with the BS as soon as the **** hits the fan.


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## EleGirl (Dec 3, 2011)

oldshirt said:


> The first most obvious is how would a judge even know if a couple has had sex and on what date(s). I certainly hope that in 2019 that judges are not actually asking divorcing couples in open court when they had sex :-O
> 
> hen how can either party verify that they had sex or what is stopping anyone from simply saying that they did or that they did not?


If someone turns up pregnant? Or sometimes there is email, mail, diaries, etc. Maybe photos? It’s not easy to prove. But in some cases it can be proven. A ‘smart’ adulterer would make sure that there was proof.

Most of this would be handled by the attorneys. For example, spouse #1 files a fault divorce for adultery. So spouse #2 (the cheater), provides their attorney with email or texts in which they are talking about how they are working on their divorce and how wonder the sex has been.

So then Spouse#2’s attorney informs spouse#1’s attorney that the divorce cannot be for fault (adultery). And #2’s attorney has the proof. It never gets to court. Divorce is changed to be no fault.



oldshirt said:


> And most importantly, why would a court even care and why would it impact free legal system where people are free to divorce as they please regardless of when the last time they had sex was?????


There are two situations in which it matters.

1)	In states that allow for fault divorces this still matters. Some states allow for no-fault divorce or filing a divorce for fault. Examples of fault would be adultery, domestic violence, abandonment, fraud, etc. In the case of an-at fault divorce, the judge will often award the injured spouse things like a higher percentage of assets.

My ex divorced his first wife for adultery in Maryland (1998). She was living with the OM. He got full custody of their 2 kids and the house. He kept his retirement and assets. She did not have to pay child support which did not matter because she worked minimum wage. In the part of Maryland where he lived, the court was very hard on adulterers. 

2)	In a no-fault divorce, the BS cannot use fault for the divorce filing. But they can sue, in the divorce, for assets and other harm from the adultery. 

One of my sisters did this. Her husband heated for years. When she found out, she filed for divorce. She was able to find receipts of thousands of dollars that he spent on vacations, gifts, etc. In the divorce settlement, assets were split 50/50. Then the amount that she could prove was spend on his cheating was subtracted from his 50% and give to her. It was thousands of dollars.



oldshirt said:


> Does a divorce case really even have room for "forgiveness?" I mean either someone wants to obtain a divorce or they don't. If someone wants a divorce and is willing to pay the court fees and fill out the proper paperwork will be given one. If both parties agree to withdraw the petition and drop the case, the case will be dropped.


In the ‘old days’ forgiveness mattered because divorce could only give if there was proven fault.

Today, it only matters in states that allow for fault divorces and in which the law allows judges to give extra compensation/consideration to the injured party.

Some states are not community property states. Instead they are what is called ‘equitable distribution’. In those states, the courts can distribute assets in any way they feel is justified. And if there was fault in ending the marriage, the judge just might give more to the injured party.


oldshirt said:


> I personally have never once in my 55 years ever heard of a divorce case being thrown out and a divorce denied because the couple had sex at some point after Dday.


I don’t think that any state today has laws that do not allow divorce based on anything. Today anyone wants a divorce, they can get it. The issue is if they want to file based on adultery. If they cannot prove adultery, then the judge would give them a divorce, but adultery will be removed as the cause. Plus the financial settlement will not take into consideration the harm of adultery.

That’s because by the time you were old enough to pay attention to divorce, most divorce laws were changing. It was very common in the past for divorce to only be allowed if one could prove fault. At that time in history, no-fault divorce did not exist. One of my aunts left her husband in the 1940’s because of his cheating and other bad behavior. But the court would not give her a divorce. She just moved in with my grandmother (her mother) with her daughter and refused to live with her husband. A few years after that he ended up killing himself. So, in the end she got her divorce. But that was like in another century, right?? 



oldshirt said:


> Conversely, I have read countless accounts of couples having sex at some point after Dday and have even heard of people I know IRL that had sex prior to the final decree.


Yea, it’s a brave new world. But once that happens, good luck filing for divorce based on adultery. 


oldshirt said:


> And let's keep in mind that judges are human and most likely understand people scoring some poon. Are they really going to stand up there in open court with is being officially recorded for public record and tell someone that they are going to ding them legally (and presumably financially) for getting some tail during a turbulent time in their marriage/divorce?


Yes.
Keep in mind that most divorces never go to some long drawn out court hearing. Most of the time it’s all settled between lawyers and/or by arbitrators. Usually, when a divorce goes to court it’s just a short hearing to sign off on things.

But yea, in at-fault divorce states, a judge is very likely to award the harmed spouse (BS) a large share of assets.



oldshirt said:


> If you think about in terms of a modern, western, legal system, it makes absolutely no sense. But there are absolutely laws and legal concepts that make little sense so that is why I am asking.


I think that there is a place even today for at-fault divorces.

For example if a person cheats and spends a lot of money on the affair partner.. let’s say spend thousands on vacations, buys them an expensive car, and maybe a house too. Yea, in a case like that, I think that BS should a fair share of the wasted assets in the settlement. Say $500,000 was spend on the AP. The divorcing AP should get at least $250,000 – their fair share of the wasted assets. But, a judge can give the BS the entire $500,000 on top of their 50% of split assets. It’s called punitive damages.



oldshirt said:


> Does anyone have any substantiated accounts where someone had their divorce case negatively impacted due to having sex with their STBX or is this some kind of myth or urban legend that can be put to bed?


I am aware of cases. I’ve done forensic accounting for divorces and this has come up in some of the cases.


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## EleGirl (Dec 3, 2011)

Some more info. I'm sure that if you google enough, you would eventually come up with cases where it's happened. 

Q. Will the judge dismiss your divorce case if you and your husband are still having sex with each other on a regular basis?
We are still living together and sleeping in the same bed.
A.	If you can prove it, yes. A requirement of a divorce is that the parties have ceased sexual relations before the filing and not have any after. Make sure to tell your lawyer about your now-void divorce case.
Read more answers along the same line …………..

https://www.avvo.com/legal-answers/will-the-judge-dismiss-your-divorce-case-if-you-an-869514.html

Possible reconciliation

In a fault divorce, reconciliation and condonation share similarities.[40] If either the husband or wife decides that forgiveness is given, a defense for fault cannot be obtained.[40] As an example, in the case of abandonment, the divorce can't be based on abandonment because one of the spouses forgives on that issue.[40] The couple would have to find another ground for divorce.[40] 
Insufficient separation

Under the no-fault grounds of separation for a pre-determined duration, the half of the couple who does not desire a divorce has only one recourse in contesting the break-up.[9] If the span of the spouses’ separation does not last at least as long as was originally decided, then the dissenting person has a suitable defense to challenge the divorce.[9] In the event of a couple's short-lived reunion or further sexual relations, the court can argue that the pair did not adhere to the time requirements of their separation agreement, and the divorce petition can be invalidated.[9] 

https://en.wikipedia.org/wiki/Grounds_for_divorce_(United_States)


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## oldtruck (Feb 15, 2018)

Only about six states still grant divorces for infidelity.
Coupled with that CS, alimony, spousal support laws have changed so much
for the last 50 years that most of the time the courts no longer care, and limited
on how they can punish the WS.


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## StillSearching (Feb 8, 2013)

EleGirl said:


> Depends on the laws where you live. *If you live in a no-fault state, it does not matter because you cannot use adultery as the basis for the divorce*. If you live in a state that has at-fault divorce, then it could matter.
> 
> https://www.nyc-divorces.com/blog/2...rounds-for-filing-a-divorce-in-new-york.shtml
> 
> ...


I live in a no fault state, and it does matter. 
You can use Fault in a no fault state, or no fault is just another option to use.


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## NobodySpecial (Nov 22, 2013)

Someone very close to me is a family lawyer in the US. She says that infidelity is VERY hard to prove in court. She says fault divorce for infidelity is so uncommon it is bordering on extinct.


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## VladDracul (Jun 17, 2016)

oldshirt said:


> Is a judge really going to ask someone in open court if they slept with their WS since Dday and then point a finger at them and tell them they aren't getting the sleeper sofa because of it?


It likely be the opposing spouses attorney asking the question. When you file for divorce in some states, my home state included, you are required to provide a date which you ceased living together as husband and wife and state that you have been in this "state of separation" since that date. (does not mean you have to be in separate residences) Sex with your estranged spouse is viewed by the court that you are not in a bona fide "state of separation". Since divorce is a civil matter, the court only requires a preponderance of the evidence. If "proven" in states that require bona fide separation prior to filing and finalizing a divorce, the courts could kick it and require refiling. 
Since such claims can effect a series of grounds, pre-neps, et cetera, my advice is stay out of spouses britches until the divorce is final. (unless you feel perjuring yourself in court is worth it. If so, and you just can't stay away from it, you probably ought not get a divorce)


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## Tasorundo (Apr 1, 2012)

I always assumed it was for purely practical reasons, rather than legal.

If you have sex with your STBX, you are going to develop conflicting feelings. It is just how the body works, you are going to bond with them and they with you. It will only complicate things and create un-needed emotional turmoil. Sure, it might be fun for the night, but at what cost.

Then throw in STD's, unwanted pregnancy, mind movies, etc, it sets up a bad situation to be much worse.


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## bandit.45 (Feb 8, 2012)

Child custody hearings might be affected by this. 

Say you are a husband fighting for sole custody of your kids. You go up on the stand and testify to the court that your wife is a dirty, nasty town bicycle who has spread her legs for half the men in the village. You contend that she leads a promiscuous, unhealthy lifestyle, and because of that she is an unfit mother and you deserve the kids because you are good and pure and peerless. 

Then your wife goes up on the stand and testifies "Well my husband and I are still having sex twice a week, so he apparently doesn't care if I'm boinking twenty other guys on the side. So how can he sit there and say that I am unfit if he is still willing to have sex with me?" 

Joint custody. Next case.


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