Who Brings the Case in Criminal Law?
In criminal law, the state acts as the party bringing the case against a defendant. You’ll see the cases listed as “State of Texas v. Smith” or “The People of the State of California v. Jones.”
If you’re ever charged with a crime, the possible penalties will focus on punishment and rehabilitation. This works very differently from civil cases. In civil cases, one person or group sues another to try and get paid back for the money or other damages they’ve lost.
In criminal cases, the state is always represented by a prosecutor. The defendant has a criminal defense attorney also standing by their side throughout the process.
Anyone who’s accused of a crime gets legal representation in the court. If you can’t afford to hire a private lawyer, the court then comes in to appoint one for you.
Some of the criminal cases go in front of a jury. Others are decided only by a judge. You can also see cases end with plea deals, where the defendant accepts an agreement instead of having to go through a full trial.
Each state sets its own criminal laws for its citizens. If a state allows the death penalty, its guidelines for crimes like capital murder will look very different from states that don’t allow it.
You can also find some differences in sentencing based on the changing marijuana laws. Different places set their own guidelines, so the outcome for similar crimes changes depending on where you’re located.
What Is Adultery?
Adultery means that a married person has chosen to have a sexual relationship with someone who isn’t their spouse. Each state in the country has different adultery laws.
Then you can take North Carolina. There adultery happens if two people who aren’t married to each other still act in a sexual way and live together or spend the night together.
If you’re facing any problems or you just aren’t sure about how the laws work where you live, it helps to talk things over with an adultery attorney.
Is It a Crime to Commit Adultery?
You’ll find that adultery counts as a criminal offense in about 16 states. But the prosecution hardly ever happens.
These laws are now starting to look very outdated. You can take Maryland as an example. Even though adultery counts as a misdemeanor there and comes with a $10 fine, you’ll almost never see any cases making it to court.
Several of the states listed above have repealed their criminal adultery laws in recent years. Colorado repealed its law in 2013, New Hampshire in 2014, Massachusetts in 2018, Utah in 2019, Idaho in 2022, Minnesota in 2023, and New York in 2024. The District of Columbia repealed its adultery law in 2003, and West Virginia did so in 2010.
In What States Is Adultery a Crime?
As of 2025, the states that still criminalize adultery are Alabama, Arizona, Florida, Georgia, Illinois, Kansas, Michigan, Mississippi, Oklahoma, South Carolina, and Wisconsin. Three of those (Michigan, Oklahoma, and Wisconsin) classify adultery as a felony, while the remainder treat it as a misdemeanor. North Carolina’s adultery statute is still on the books but was found unconstitutional in 2006.
The legal consequences of adultery also vary significantly beyond criminal penalties. In some fault-based divorce states, adultery can directly affect alimony awards and property division. A few states, such as North Carolina, still allow civil lawsuits for alienation of affection, where a spouse can sue the third party involved in the affair.
You should also know that each state has its own definition of adultery, so things don’t always end up working in the same way everywhere. You have to check your local codes.
Are Adultery Statutes Constitutional?
The statutes about adultery still do follow the Constitution. You don’t see the states bringing charges for them these days.
The laws originated from past generations and they only get taken off the books if someone challenges them. You’ll find that the adultery laws were created to push the belief that sex should only happen in a marriage. It’s a system built on tradition. That the marriage was between one man and one woman who promised to be faithful.
Back when the lawmakers put these laws in place, people thought that the government should step in and try to stop any sex outside of marriage.
Who May Initiate a Prosecution for Adultery?
Some of the states still treat adultery as a crime, so the state prosecutor will start the case. In a few places, a spouse can sometimes also start the legal process.
And if you’re thinking about moving forward with a case like this, you should talk things over with a family lawyer first. This helps you stay away from any surprises before anything can become official.
In states where a spouse can initiate the process, the typical first step is gathering evidence that the adultery occurred. The spouse would then consult with an attorney to evaluate the strength of the evidence and determine whether criminal prosecution or a fault-based divorce filing is the better path forward.
If pursuing criminal charges, the spouse may need to file a formal complaint with local law enforcement or the prosecutor’s office, depending on the jurisdiction’s requirements. The prosecutor then decides whether to move forward with charges based on the evidence and available resources. In many cases, prosecutors decline to pursue adultery charges because they prioritize more serious offenses.
Additional Factors to Consider
There is no universal statute of limitations for adultery prosecutions, and the applicable time limits vary by state. In states that classify adultery as a misdemeanor, the statute of limitations is typically one to three years from the date the offense occurred. In states where adultery is a felony, the time limit may be longer.
Once the statute of limitations expires, the state can no longer bring criminal charges. In the divorce context, there is generally no specific time limit on raising adultery as a factor, but courts may give less weight to conduct that occurred many years before the divorce filing. Consulting with an attorney in the relevant state is the best way to determine whether any filing deadlines apply.
Costs/Fees
Beyond any criminal fines, adultery cases can involve significant costs. If the case is handled as a criminal prosecution, the defendant may face court costs, fees for serving subpoenas, and attorney fees for their defense.
In divorce proceedings where adultery is raised, costs can include filing fees, discovery expenses, deposition costs, and fees for expert witnesses such as forensic accountants. If a private investigator is hired to gather evidence, that adds another layer of expense. In some jurisdictions, the court may order one spouse to contribute to the other’s attorney fees if there is a significant disparity in financial resources.
Who Has the Burden of Proving Adultery?
Just like in the other criminal trials, the state still has the burden of proof to prove beyond a reasonable doubt that the adultery actually happened.
The state also needs to prove that at least one of the people who are involved is married. In most states that criminalize adultery, only one party needs to be married for the offense to apply.
However, some states hold both the married person and the unmarried third party criminally liable. For example, Arizona’s statute specifies that when the act is committed between parties where only one is married, both can be prosecuted.
In states where adultery is only relevant in a divorce context rather than as a crime, the marital status of the third party generally does not matter. The focus is on the married spouse’s conduct and its impact on the marriage and shared assets.
Evidence and Documents
Evidence used to prove adultery varies depending on whether the case is criminal or part of a divorce proceeding. Common types of evidence include text messages, emails, and social media communications between the parties. Photographs, videos, and hotel or travel receipts may help establish that the relationship occurred. Witness testimony from friends, family members, neighbors, or private investigators can also support a claim.
In divorce cases involving financial misconduct, bank statements, credit card records, and forensic accounting reports may be needed to trace community or marital funds spent on the affair. All evidence must be obtained through legal means to be admissible in court.
What If I’m a Victim of Adultery?
When you still have to work with a cheating spouse, you should talk to a family law attorney. Your lawyer knows what steps work the best in your state if you want to move forward with an adultery claim. If it makes sense for your situation and you have that choice, your lawyer can also stand by your side if you choose to go ahead with a fault-based divorce.
Why Should I Tell the Truth to My Lawyer?
You should always tell your lawyer the truth, no matter what case you have. If you have charges related to adultery and you claim you’re still innocent even though the evidence says otherwise, your lawyer can’t work out a fair plea deal for you or try to ask the jury for a lesser charge.
When you’re being honest with them, your lawyer can then look at the facts and show that you’re only responsible for something less or that a plea deal makes sense.
Plus your lawyer can use what you’ve shared to ask for the lowest possible sentence if you do end up convicted.
Take a situation where someone was tricked into committing a crime. You want your lawyer to have the full story so they help you in the best way possible.
In addition to fines and potential jail time, an adultery conviction can carry collateral consequences that affect other areas of a person’s life. A criminal record (even for a misdemeanor) can appear on background checks and may create difficulties with employment, particularly in professions that require security clearances or professional licensing.
In custody disputes, a criminal conviction related to adultery could be raised as a factor when determining the best interests of the child. For members of the military, adultery is a separate offense under the Uniform Code of Military Justice and can result in disciplinary action, including court-martial, reduction in rank, or discharge. These long-term consequences make it important to take any adultery charge seriously, even in states where prosecutions are rare.
Should I Hire a Lawyer?
If a state ever charges you with adultery as a criminal offense, you should reach out to a criminal lawyer as soon as you can. Your lawyer can then tell you about how the adultery laws work in your state and even explain any punishments you could face. They’ve seen this before and know the ropes.
Attempting to handle an adultery charge or an adultery-related divorce without legal representation carries significant risks. Criminal procedure involves rules about evidence, discovery, and court filings that can be difficult to navigate without training. Missing a deadline or failing to challenge improperly obtained evidence could result in a conviction that might otherwise have been avoided.
In divorce proceedings, failing to properly trace and document the misuse of marital assets can mean losing the right to recover funds spent on an affair. An experienced attorney understands the procedural requirements, knows how to negotiate with prosecutors, and can protect your interests whether the case involves criminal charges or a contested divorce.
Your lawyer also stands by your side in court and speaks up for you to present any of the defense arguments that may help with your case. You don’t have to face this alone.
