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With 100 years of combined experience, Raiser & Kenniff, is the place to turn when you or a loved one are accused of a crime. When the media needs professional and accurate legal insight on criminal cases in the national spotlight they turn to Raiser & Kenniff.


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Our founding partners are both former new york prosecutors who understand how to handle a criminal case from every angle and therefore, they can provide you with the strongest defense.

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Can adultery become an issue if the divorce is overturned?

When contemplating filing for divorce, or when in the midst of a marriage dissolution case, questions typically abound. For example, you may wonder what impact an allegation of adultery can have in divorce proceedings. For example, you may want to know whether adultery can become an issue if a divorce is overturned?

Fault Versus No-fault Divorce

In the United States, there are two general types of divorce cases that can be pursued. The type of divorce proceeding available to you depends on the laws in the state in which you live.

As the name suggests, in a fault divorce, an allegation of some sort of misconduct is made in the petition or complaint in a marriage dissolution case. Adultery can be a grounds for marriage dissolution in a fault divorce.

On the other hand, in a no-fault divorce case, not allegation of wrongdoing or misconduct is made in the divorce petition or complaint. Rather, an allegation is made that the parties have irreconcilable differences that render it impossible for them to meet the intended ends of marriage.

Prior to the 1980s, fault divorce was commonplace. A trended started at about that time towards no-fault divorce in most states. During the past 10 to 15 years, there has been a movement to enact fault divorce statutes in some states. In this day and age, some states have both fault and no-fault divorce statutes on their books.

Overturning a Divorce Decree

In some rare instances, a divorce decree, once entered, is overturned or set aside by the court. Normally this occurs when a party to the divorce files a motion to set aside a divorce decree based on some sort of allegation that it was not properly entered in the first instance.

An example of a situation in which divorce decree is set aside is one in which it initially was entered by default. A party to the divorce may come into court contending that he or she was not properly served with the divorce papers in the first instance. In other words, he or she essentially alleges that he or she was not even aware of the proceedings.

Another example in which a divorce decree might be overturned is if the case were appeals. An appeals court has the power to overturn a divorce decree and send the case back to the trial court for additional proceedings.

Adultery and an Overturned Divorce Case

Depending on the circumstances that caused a divorce decree to overturned or set aside, adultery could become an issue in the case. For example, if the divorce is being pursued in a state that permits marriage dissolution based on an allegation of fault, adultery could end up forming the basis for further proceedings.

In another scenario, even in a no-fault state, adultery might become an issue after a divorce case was overturned in regard to issues pertaining so finances or children. For example, if one of the spouses was having an affair and was providing his or her liaison partner with assets from the marriage, that could become an issue. Adultery could come into focus after an initial divorce decree is set aside based on allegation that the spouse who engaged in this conduct concealed it from the other spouse and from the court in the initial divorce proceedings.

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