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CIRCUMSTANTIAL EVIDENCE OF ADULTERY CARRIES MORE WEIGHT IF THE OFFENDER FAILS TO OFFER A SUITABLE EXPLANATION FOR THE CONDUCT

The burden of proving adultery is high. It must be shown by “clear and convincing evidence.” A party must show inclination and reasonable opportunity to commit the act. In GILLESPIE v. GILLESPIE, NO. 2011-CA-01270-COA (Decided 1/29/13), the Court found the following circumstantial evidence was sufficient to award a divorce on adultery:
  • a ticket for a cruise that the wife went on with the man.
  • a Mother’s Day card given to the wife that said: “I Love the way you do your do, I love your sexy smile, I love your classy wardrobe, too, and your cool and sassy style for me you’ll always be ‘the one’ who just can’t be replaced, yes, love, when all is said and done I’ve really got good taste.”
  • pictures of the wife and the man hugging.
  • evidence that the man sent flowers to the wife.
  • an admission by the man that he provided the wife with a cell phone.
  • evidence the wife took care of the man’s home while he was away.
  • photographs of underwear with the phrase “army booty.”
The Court noted that the wife failed to offer a reasonable explanation for these items of evidence and affirmed the award of a divorce on adultery.