In almost every state, you cannot sue your husband for cheating. The civil claims that still exist for infidelity are aimed at the affair partner, not the spouse who strayed, and only about half a dozen states even allow them. Where your husband’s cheating carries real legal weight is inside the divorce itself, where it can shift alimony and how a judge divides marital property.
Why the Lawsuit Targets the Affair Partner
Two old common-law torts sit behind almost every question about suing over an affair: alienation of affection and criminal conversation. Both are filed against the third party who had the affair with your spouse. Your husband is typically a witness in that case, not the defendant. If what you want is to hold him financially accountable, the divorce is the mechanism, not a separate infidelity suit.
Criminal conversation is the narrower claim. You have to prove the third party had sexual intercourse with your spouse while the marriage was intact. That’s essentially the whole case.
Alienation of affection is broader and doesn’t require any proof of a sexual relationship. It focuses on whether the third party’s conduct destroyed the love and companionship in your marriage. To win, you generally have to show three things: that genuine love and affection existed between you and your spouse, that the affection was destroyed or diminished, and that the defendant’s conduct was a significant cause of that loss. Both claims are intentional torts, so the defendant’s conduct has to be purposeful, not accidental.
Where These Claims Still Exist
Roughly six states still allow alienation of affection or criminal conversation lawsuits. The rest abolished them decades ago as incompatible with modern ideas about personal autonomy and no-fault divorce. If you don’t live in one of the remaining states, there is no legal path to sue the affair partner, regardless of how egregious the conduct was. A family law attorney in your state can confirm quickly whether either claim is available to you.
Even where the torts survive, legislative efforts to repeal them surface periodically. The window may not stay open indefinitely.
What Cheating Can Do Inside Your Divorce
For most people, this is the more useful question. Whether your husband’s affair actually changes anything depends on your state’s approach to divorce and which issues are in play.
Alimony and Spousal Support
In states that weigh marital fault when setting alimony, adultery can move the number substantially. A spouse found to have committed adultery may be barred from receiving alimony entirely, or the amount and duration may be reduced. The other spouse may receive more generous or longer-term support. In pure no-fault states, spousal support turns on financial factors like income, earning capacity, and standard of living during the marriage, and adultery plays little or no role.
Marital Waste and Property Division
Adultery on its own rarely changes how a court splits marital property. Spending marital money on the affair partner is a different story. If your husband used joint funds to buy gifts, pay for trips, rent an apartment, or otherwise bankroll the relationship, courts can treat that as “marital waste” or “dissipation of assets.” A judge may order him to reimburse the marital estate or adjust the property split to compensate you. Proving this takes financial records: credit card statements, bank withdrawals, and receipts that trace marital dollars to the affair.
What a Claim Against the Affair Partner Can Recover
In the states where these torts survive, damages generally fall into two buckets.
- Compensatory damages cover the emotional harm you suffered, including loss of your spouse’s companionship, affection, and intimacy. Courts weigh how long the affair lasted, whether it was conducted openly, and how severely it disrupted your life. There’s no fixed formula, and awards vary widely.
- Punitive damages can be added when the defendant’s conduct was especially malicious or reckless. Some juries have returned punitive awards in the millions, though large verdicts are sometimes reduced on appeal.
The spread of outcomes is enormous. Some cases settle for modest sums; others produce jury verdicts well into seven and eight figures. That unpredictability is part of what makes these cases a gamble.
The Tax Hit Most Plaintiffs Miss
Winning money on an alienation of affection or criminal conversation claim creates a tax problem that catches many plaintiffs off guard. Under federal law, damages for emotional distress not caused by a physical injury are included in your gross income and taxed as ordinary income. Because these claims are emotional harm claims with no physical injury component, the IRS treats most of the award as taxable. The one exception is the portion that reimburses you for actual medical expenses related to emotional distress, such as therapy costs, and only if you didn’t already deduct those expenses on a prior return.1Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness The IRS has confirmed that emotional distress recoveries from non-physical injuries are generally includable in gross income.2Internal Revenue Service. Tax Implications of Settlements and Judgments
A $500,000 verdict can leave you with considerably less after federal and state income taxes. Factor this in before accepting or rejecting any settlement, and talk to a tax professional first.
Gather Evidence Carefully
Building one of these cases takes evidence, and the temptation to snoop is strong. The methods you use can create legal problems worse than the affair.
The federal Wiretap Act makes it a crime to intentionally intercept someone’s electronic communications without authorization. That includes reading your husband’s texts through spyware, recording phone calls without consent, or logging into email accounts you aren’t authorized to use. Penalties run up to five years in federal prison plus fines, and there is no general spousal exception in the statute.3Office of the Law Revision Counsel. 18 USC 2511 – Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited Even if you know his password, using it for surveillance can expose you to both criminal charges and civil liability.
GPS tracking is its own gray area that varies by jurisdiction. Some courts have found no reasonable expectation of privacy in vehicle movements on public roads; others are moving toward stronger privacy protections. What’s legal in one state may not be in another.
The safer approach is to talk to an attorney before gathering anything. Evidence that tends to hold up in court is the kind you encounter in the normal course of life: a message that pops up on a shared tablet, records from joint accounts, testimony from people who witnessed the affair. Material pulled through active surveillance or unauthorized account access risks being excluded and can trigger a counterclaim against you.
Barriers Worth Knowing Before You File
Even in a state that allows these torts, winning is harder than it looks.
Proving Causation
The biggest evidentiary problem in alienation of affection cases is causation. Defense attorneys almost always argue that the marriage was already falling apart before the affair began. If you were in counseling, living separately, or openly unhappy before the third party entered the picture, showing that the defendant caused the breakdown becomes an uphill fight. You have to establish that genuine love and affection existed and that the defendant’s interference is what destroyed it.
Time Limits
These lawsuits carry statutes of limitations that vary by jurisdiction. They typically run from the last act of interference, not from the date you discovered the affair. Once the window closes, the claim is gone regardless of how strong the evidence is. Missing the deadline is one of the most common and most preventable mistakes.
Exposure
Filing puts the most painful details of your marriage into the public record. Discovery will surface private communications, sexual history, and personal vulnerabilities. The defendant’s lawyers will probe every weakness in the relationship. If children are involved, the litigation can complicate custody dynamics. Some plaintiffs walk in looking for accountability and walk out feeling more exposed than vindicated.
If Your Husband Is in the Military
Military service changes the picture. Under Article 134 of the Uniform Code of Military Justice, extramarital sexual conduct is a punishable offense. The government must prove that the service member engaged in a sexual act, that at least one party was married to someone else at the time, and that the conduct was prejudicial to good order and discipline or brought discredit upon the armed forces.4U.S. Army. Legal Separation, Adultery and the UCMJ
Maximum penalties for a conviction include a dishonorable discharge, forfeiture of all pay and allowances, and up to one year of confinement. Prosecutions aren’t common, but they happen, particularly when adultery is tied to other misconduct or disruption in a unit. Legal separation can operate as an affirmative defense in some circumstances, though the rules are fact-specific. A military defense attorney is the right resource if this applies to your situation.