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Can adultery become an issue if the divorce is overturned?

Although an overturned divorce is rare, it can happen. If your divorce is overturned and you’re in a new relationship, there is the possibility that it becomes an issue. It will depend on your state, as it could only become a problem if your state has fault divorces. Here’s what you need to know if you find yourself in this situation.

What Happens When a Divorce Is Overturned?

A judge can overturn a divorce is one party presents a valid legal reason for it. Since there is rarely a reason why a court wouldn’t allow a couple to get divorced, it’s equally unlikely that a court will overturn a divorce, but it has happened before so there is the possibility.

When a divorce is overturned, it’s as if you and your spouse are remarried. You can file for divorce again, but for all intents and purposes, you two go back to being a married couple, at least in terms of legal status. This makes overturning a divorce very different from modifying a divorce, as a modification only changes the terms but still keeps you both legally divorced.

How Adultery Can Become an Issue After an Overturned Divorce

Let’s say you were divorced a few months ago and you’ve gotten into a new relationship. Your ex petitions the court to overturn the divorce and is successful. Once that goes through and you’re technically married to your ex again, continuing your relationship with another person would be considered adultery.

Here’s how this could negatively affect you:

If you live in a state that has fault divorce, then your spouse could file for divorce from you and use adultery as the grounds for divorce. If the divorce court finds that you committed adultery, then you would be considered at fault in the divorce. This could affect the division of property and any spousal support.

Now, if you live in a no-fault divorce state, then you don’t need to worry about this. In those states, the divorce court doesn’t assign fault to either party in the divorce, regardless of the circumstances, and the grounds for divorce are almost always irreconcilable differences.

How Likely Is It That a Court Would Consider You at Fault?

Although it’s impossible to predict how a court will rule, an ex that gets your divorce overturned and then tries to divorce you on grounds of adultery will have hurdles to overcome.

First, he’ll need to prove that you’re in a relationship with someone else. The divorce court won’t simply take him at his word.

If your ex was also in a relationship, you can use recrimination as a defense. This means that your ex committed the same act that you did, adultery, and therefore can’t use it as grounds for divorce.

What Should You Do?

If your divorce has been overturned and you’re in a relationship with someone else, the first thing you should do is talk to your divorce lawyer and ask for his advice. He will be able to explain the laws in your state for you.

In a state that has fault divorces, your divorce lawyer may recommend that you end your current relationship or put it on hold while you go through the divorce process again.

It’s obviously not convenient, but the reality is that the only way your ex can successfully divorce you on grounds of adultery is if he proves that you’re in another relationship to the court. You don’t want to give him any more opportunities to gather evidence of that.

Just because your divorce was overturned doesn’t necessarily mean that your ex wants to refile and have the court find you at fault. You both could refile due to irreconcilable differences and avoid any issues of adultery. It will depend on what you think your ex is going to do.

Adultery tends to be difficult to prove, especially when you and your ex don’t live together anymore. If you want to avoid the worst-case scenario, you’ll put your current relationship on hold until your divorce is finalized again. However, it’s also unlikely that your ex will try to divorce you on grounds of adultery and be able to prove it to the court.