Ohio Adultery Laws – An Overview
Ohio, like other states, requires marital fidelity as part of the contract of marriage. As outlined in Ohio Revised Code Section 3103.06(A), bigamy is prohibited, as is extra-marital sexual conduct.
Statutes
Ohio Revised Code Section 3103.06(B) addresses sexual misconduct and states:
"(1) A spouse may commence a divorce action or an action for legal separation or for a declaration of invalidity of marriage on the following grounds:
(a) For a divorce, adultery;
(b) For a divorce or legal separation, willful absence of either of the adverse party for more than one year;
(c) For a divorce or legal separation, extreme cruelty, which may consist of physical or mental abuse, either habitual or continual, that rises to a level of either physical harm or psychological harm that carries the substantial risk of physical harm;
(d) For a divorce or legal separation, fraud in the inducement of the marriage, which may consist of the commission of a fraudulent act by one of the parties to the marriage that prevents the other party from freely and fully entering into the marriage;
(e) For a divorce or legal separation, being habitually intemperate of mind , which means excessively or grossly addicted to intoxicating liquor or to the use of controlled substances as defined in Ch. 3719. of the Revised Code;
(f) For a divorce or legal separation, willful absence out of this state for one year);
(g) For a divorce or legal separation of either party from the other prior to the entry of a final decree of legal separation pursuant to this chapter or a final decree of divorce pursuant to Chapter 3105. of the Revised Code;
(h) For a divorce or legal separation of either party from the other after a separation prior to the entry of a final decree of legal separation pursuant to this chapter of a final decree of divorce pursuant to Chapter 3105. of the Revised Code, if the separation was caused by the misconduct of either party, and the parties have lived separate and apart for at least one year during the period of separation;
(i) For a divorce, either of the following:
When adultery is plead as grounds for divorce, it is necessary for the party pleading it to prove that adultery has been committed. See Housley v. Housley, 25 Ohio St.2d 89, 99, 267 N.E.2d 326 (1971).
Implication for Residents
Adultery is not a crime in Ohio. However, if physical harm or psychological harm resulted from the adultery, the action may be considered a crime and a felony or misdemeanor could be charged.
A Brief History of Adultery Laws in Ohio
Historically, adultery has been treated as both a sin and a crime. The US brought forward Anglo-Saxon common law that treated adultery with puritanical constraints. This presented the crime of adult and the punishments could be massive, even death. By the time the Constitution was written the punishments of adultery had been relegated to more humane forms of punishment, but many believed that adultery should remain a serious crime. On both a state and federal level adultery was a grounds for divorce. On a federal level adultery became a basis for annulment and separation of the states. It wasn’t until the 70’s that adultery became a no-fault based ground for divorce.
Divorce law evolved on state levels and divorce "laws for adultery" were enacted throughout the nation. In Ohio, the very first divorces were granted in what was known as ecclesiastical courts in 1826. The 1851 Ohio Constitution granted the General Assembly to enact laws for divorce, however in only 1852 were "adultery" and "gross neglect of duty" written into the statute.
Ohio courts consider as grounds for divorce "incompatibility, extreme cruelty, habitual drunkenness, willful absence for more than one year, fraudulent contract, gross neglect of duty, adultery, imprisonment for more than three years, procured divorce without the other’s knowledge, and physical impotency". Ohio’s statutory book does not list adultery as a cause of action for dissolution, only divorce, nor do it acknowledge no-fault based grounds for divorce. This statute was enacted in 1953 and are the current grounds for divorce in Ohio.
The Legal Implications of Adultery in Ohio
Under Ohio law, adultery can impact the outcome of divorce proceedings. While Ohio is a no-fault divorce state, meaning that the court does not consider alimony or property division based on accusations of adultery, the fact that one spouse cheated can still matter. For instance, in property division, if one spouse used money from a joint account to pay for a hotel room for an affair, the judge may award a larger share of that account to the other spouse. The same is true if the cheating spouse bought gifts with marital funds for his or her paramour. In essence, adultery can affect how the judge deems marital property, even if the cheating spouse does not suffer direct legal consequences.
Also, adultery can impact child custody decisions. For instance, if the cheating spouse had an affair in the house itself where the children live, the court could view this illegal and immoral activity as abusive to the children and dangerous to their well-being. If there is a pattern of the cheating spouse cheating around the children, this too could have a negative effect on child custody determinations.
Furthermore, adultery by one spouse may be considered when evaluating alimony. Specifically, adultery is irrelevant to spousal support payments in Ohio, unless the cheating spouse used marital funds to have the affair in a way that reflects immorally—that is, if the cheating spouse spent joint money on a hotel room, for example.
Keep in mind that Ohio law does not prohibit extramarital affairs. Adultery does not impact the terms of the divorce itself.
Adultery and Divorce – An Ohio Perspective
In Ohio, adultery is defined in Ohio Revised Code Section 3105.01 with the following words: "willful absence of one spouse from the other for one or more years during the marriage or otherwise causing the other spouse to be living separate and apart from him or her, without making provision, according to law, for the support of the deserted spouse and minor children."
While adultery is illegal in Ohio, the State of Ohio allows for "no fault" divorce. However, engaging in adultery will have an impact on the divorce settlement. A marital asset is subject to distribution by the court, regardless of the name that is given to the asset, (e.g., a retirement account, a bank account, etc.) unless an asset is determined as separate property.
If one spouse has been unfaithful, and the other spouse has remaining marital assets as a result of the infidelity, he or she may keep all or a portion of those marital assets as a penalty for the infidelity. (Just as the court may award separation of marital assets in the event that a spouse spends marital assets in bad faith. "Bad Faith" includes gambling, hiding assets, and keeping facts and documents secret from the other spouse).
If adultery has taken place prior to separation, it is likely that the infidelity will have no major impact on how the divorce settlement proceeds. But, if infidelity or other misconduct has been demonstrated during the divorce process, it may affect the outcome of how alimony and marital assets are and will be distributed.
How to Prove Adultery in a Court of Law
When it comes to proving adultery in court, it is important to understand the evidence and legal standards involved in the process. Under Ohio law, adultery may be used as a ground for divorce, but it is important to keep in mind that the burden of proof is on the accusing spouse to provide sufficient evidence of this ground.
To prove adultery in an Ohio court, the accusing spouse must demonstrate that their spouse had sexual relations with a person other than their spouse after the marriage was legally formed. This evidence can take many forms, including testimony from eyewitnesses, email and text messages, and photographs.
However, not all evidence is admissible in court. Under Ohio’s rules of evidence, hearsay – statements made out of court by someone other than the witness testifying to the statement’s truth – are generally not permitted . As a result, spouses seeking to prove adultery will need to obtain corroborating evidence or testimony from additional witnesses who can speak directly to the affair.
Importantly, adultery is not the only fault that can be cited in an Ohio divorce – spouses may also accuse one another of gross neglect of duty or extreme cruelty, each of which has its own standards and rules of evidence. However, if your spouse is accusing you of adultery, it is important to know that adultery may affect child custody, property division, and alimony payments.
If you find yourself in a situation where your spouse is claiming that you have committed adultery, it is crucial to speak with an Ohio divorce attorney to understand the evidence that can be used to prove or disprove this claim and how it may impact the outcome of your divorce case.
Child Custody and Adultery in Ohio
Adultery may be included in the section of the Ohio statutes dealing with disruption of marital cohabitation, but that does not mean it is a factor in deciding child custody. Ohio’s statutory language regarding allocation of parental rights and responsibilities for children in divorce and dissolution proceedings does not mention adultery. The primary consideration in custody matters for the juvenile court is the best interest of the child.
The existence and evidence of extramarital affairs is relevant to the divorce proceeding itself and does offer insight into the behavior, values, and lifestyle of the parties. A parent’s actions may be so serious as to impact their ability to provide for the health and welfare of the children. While the courts do acknowledge the change in circumstances when either or both parents engages in a new romantic relationship, it is not an automatic determinative factor in how the court approaches the question of child custody. At the end of the day, the court considers how each of the parents will factor into the children’s well-being.
Myths and Realities of Ohio Adultery Laws
Many people have preconceived notions about adultery laws in Ohio. Here are some of the most common misconceptions about adultery laws in Ohio, along with a factual explanation as to why they are inaccurate:
• "An affair guarantees a divorce." This is simply not true. Even in Ohio, where an "at fault" ground for divorce exists under Ohio Revised Code Section 3105.01(C), most divorces are filed on the ground of incompatibility. Having an "at fault" ground for divorce will have zero impact on the equitable distribution of property.
• "Cheating will affect my portion of the marital estate." Again, this is untrue. In Ohio, property is dividable on an equitable basis, however, the law keeps those assets separate. Your behavior in not taking care of debts is the only way for the court to punish you. Adultery itself does not impact property division in Ohio.
• "I can sue my spouse’s lover for destroying my marriage." Not true. Ohio Revised Code 3103.05 states that you may not recover for alienation of affection.
• "Alimony is guaranteed if I can prove my spouse cheated." Again, this is untrue. While you can prove grotesque behavior to the court, whether or not spousal support is award is at the discretion of the court.
• "The judge will make my spouse pay legal bills for cheating on me." This is also untrue in Ohio. The courts do not punish in this way.
Legal Representation for Adultery Matters in Ohio
If you are involved in a legal dispute related to adultery or are a party in a divorce action where adultery has occurred , it’s critical to consult a legal expert who can offer specific guidance into your situation. An attorney will make sure you are aware of how Ohio law may impact your case and guide you through the many issues involved in these matters.
In this case, an attorney will:
