Adultery is the only way to get a divorce without having to wait at least six months. Assuming you can prove adultery occurred, you can have a judgment of divorce the first time you go to court. The problem is one of proof. You will need the supporting testimony of one or more witnesses as well as your own.
 

Collusive divorces

We are frequently asked the question "Why not just have both parties agree that there was adultery if they want a quick divorce?"

The answer to that is clear. There has to be independent proof of the adultery. Otherwise, the divorce is considered collusive and will not be granted.

Related Topics

Separation
There is no such thing in Louisiana as a "separation". This is the old law that required that the parties receive a legal separation before a final divorce could be granted. Now, in most cases, you file for a divorce and after a six month waiting period, the divorce can be made final.

How do you prove your spouse committed adultery? Private detectives taking pictures through the window of a cheap motel as it is portrayed on the late show may not be necessary. It will be up to the individual judge as to the amount of proof required, although the Louisiana higher courts have stated that you must at least show the time and place the adultery took place as well as the name of the other party, if known.

We have seen many divorces granted after a trial that proceeded like this: the petitioner takes the stand to present his or her testimony. This testimony includes the reason the petitioner suspected adultery had occurred followed by a recounting of how petitioner and two witnesses saw the defendant enter the one bedroom apartment of a person of the opposite sex at 8:00 p.m. on the ninth of January. At 1:00 a.m. the lights went out and at 9:00 a.m. the defendant left the apartment and drove to work. The two witnesses each take the stand and confirm the petitioner's story.

The law requires that you prove your case to the exclusion of every other reasonable explanation of what occurred. The mere fact that a man and a woman spend the night together at the same residence is not by itself necessarily enough proof that adultery took place. In this case, if the suit has not been contested by the defendant, the judge might assume that adultery took place. If the spouse contests the suit, he or she will have to come up with an explanation as to what did happen in that apartment which, under the circumstances, would not be easy. Let's look at two actual Louisiana cases:

Jim had been suspicious of his wife Nellie for some time. She would go out drinking with her friends and not return until long after the bars had closed. Jim decided to follow Nellie one night and brought a friend with him so that he would have a witness in case something happened. Just as Jim had suspected, Nellie went to a bar with a man and then to the man's motel room. Jim and his friend watched the lights go out in the room at 3:00 a.m. and watched Nellie leave for work at 8:00 a.m. At the trial, Nellie admitted that she had spent the night at the motel, but claimed that she was only discussing her marital problems with a sympathetic listener. Nellie challenged her husband to provide direct proof that adultery had taken place during that night.

The court had to look at the totality of the circumstances to decide whether Jim had proven adultery. It was shown at trial that Nellie saw Jim when she came out of the room and that she ran back inside to call her lawyer. The court did not consider this the act of an innocent spouse. Besides, the judge just plain did not believe Nellie when she testified that no intercourse had taken place. Jim won his divorce.

You need to be very careful in adultery. There has been a trend in the higher courts to require very specific proof that adultery actually occurred.

Factors that helped convince judges in other cases that adultery occurred included: (1) proof that the man and woman spent the night in the same room; (2) proof that they were in a state of undress; (3) proof that they were behind a locked bedroom door; and, (4) proof that the adulterous affair was well known in the community. There is also a 1986 case that granted a divorce based on adultery where it was proven that oral intercourse had occurred.

Sentenced to death
If you think the consequences of adultery are severe here, consider Amina Lawal who was sentenced to death by a Nigerian Islamic court for having a child out of wedlock. She will be allowed to stay alive until her child is weaned, at which time she will be stoned to death.

Is trying to prove adultery worth the trouble?
Most people who file for divorce based on adultery probably think that they will get their divorce over quicker. This may not be the case since most court dockets are so crowded that you might not get before a judge within six months anyway with a contested case.

Considering the extra expense and trouble of going through a "fault" divorce, it might be just as fast, and certainly easier, to go with the no-fault divorce that requires a 6 month waiting period.

Jointly owned assets
For a discussion on how to find and protect assets during a divorce, see our in-depth article on Finding Assets.