If you find out your spouse has cheated on you, and you want to use that as grounds for a divorce, its probably not in your best interest to have any more intimate encounters. The divorce attorneys at Boles Holmes White often counsel clients considering divorce due to their spouse’s infidelity. It is not uncommon for the couple to try to work through their problems before finding it is too difficult and deciding to proceed with the divorce.
However, much of the leverage the faithful spouse had at the time they learned of the cheating spouse’s activity can be lost if they are found to have forgiven the cheating before the divorce is filed. An old Alabama statute, found at Code of Alabama (1975) §30-2-3, codifies this idea stating: “No judgment can be entered on the confession of the parties . . . where there has been a condonation of adultery by the admission of the offending party to conjugal embraces after knowledge of the commission of the crime.”
It is interesting in reading this statute, which is nearly 80 years old, refer to adultery as a “crime.” Indeed, that is how it was viewed in the early 20th century. Even when it was viewed as a crime, such crime was forgiven when the non-offending spouse “condoned” the adultery by admitting the offending party to their “conjugal embraces” or in laymen’s terms, by having sex with them.
Alabama divorce judges today can grant a divorce without any grounds, unlike days past. When the above referenced statute was passed, a judge had to have grounds to divorce a couple. The statute basically states that a judge cannot grant a divorce on the grounds of adultery if the couple has had sex since the innocent spouse learned of the cheating. This is not the situation now that Alabama no longer requires a specific ground in granting a divorce.
However, it has been the experience of our divorce attorneys that adultery is not held against the offender when the parties have engaged in intercourse after the non-offender learned of the adultery. An exception to this general rule typically exists when the offender fails to stop their cheating behavior against the wishes of their spouse.
If you have learned that your spouse has cheated, make the decision as to whether that is the end of the relationship. If so, do not go to bed with them or you risk losing a huge advantage in the divorce action. On the other hand, if your spouse learns you are the cheat, it might be in your best interest to seek forgiveness and “make up sex” before you find out your behavior costs you both your relationship and your assets.