For almost every civilian, the answer to whether you can go to jail for cheating on your spouse is no, even though adultery is technically a crime in about 16 states and a felony in three of them. Prosecutors virtually never bring these cases. The real exception is the U.S. military, where adultery is prosecuted under the Uniform Code of Military Justice and can carry up to a year of confinement. For everyone else, the meaningful consequences of an affair show up in divorce court, in civil lawsuits in a few states, and sometimes in a security clearance file.
States That Still Criminalize Adultery
Roughly 16 states keep active criminal adultery statutes. Three treat it as a felony: Michigan, Oklahoma, and Wisconsin. Michigan’s law says anyone who commits adultery is guilty of a felony, and when the act involves a married woman and an unmarried man, both are equally guilty.1Michigan Legislature. Michigan Compiled Laws 750.30 – Adultery; Punishment Wisconsin classifies adultery as a Class I felony that reaches both the married person and their partner.2Wisconsin State Legislature. Wisconsin Statutes 944.16 – Adultery
The rest of the states with statutes on the books treat adultery as a misdemeanor. That group includes Alabama, Arizona, Florida, Georgia, Illinois, Kansas, Maryland, Mississippi, North Carolina, North Dakota, Rhode Island, South Carolina, and Virginia. Typical maximum penalties in these states range from a modest fine to 90 days in jail. New York repealed its adultery law in late 2024; before that, it was a class B misdemeanor with a maximum of $500 in fines and 90 days in jail.
Why Civilians Almost Never Get Prosecuted
Having a law on the books and enforcing it are two different things. Prosecutors have wide discretion, and adultery sits near the bottom of any district attorney’s priority list. Offices with limited budgets and full caseloads of violent crime, drug offenses, and fraud have no obvious reason to spend resources proving that one married adult slept with another.
The evidentiary standard makes it harder still. A criminal adultery charge has to be proven beyond a reasonable doubt, which means direct evidence of sexual intercourse, not just suggestive texts or a hotel receipt. When adultery charges have surfaced historically, they were often filed as leverage in a bitter divorce rather than as genuine standalone prosecutions. Even in the felony states, there is virtually no record of recent prosecutions resulting in prison time. The statutes carry symbolic weight; legislatures simply haven’t gotten around to repealing them.
Service Members Face Real Risk
If you’re on active duty, the analysis changes completely. Under Article 134 of the Uniform Code of Military Justice, extramarital sexual conduct is a criminal offense that military courts actually prosecute. The elements are that a service member had sexual intercourse with someone, either the service member or their partner was married to someone else at the time, and the conduct was prejudicial to good order and discipline or brought discredit upon the armed forces.3U.S. Army. Legal Separation, Adultery and the UCMJ
The maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year. Article 134 is the UCMJ’s general article, reaching “all disorders and neglects to the prejudice of good order and discipline in the armed forces” and “all conduct of a nature to bring discredit upon the armed forces.”4Office of the Law Revision Counsel. 10 USC 934 – Art. 134. General Article
The “prejudice to good order and discipline” element gives commanders room to decide which cases go forward. An affair between two service members in the same unit that disrupts operations is far more likely to draw charges than a relationship kept entirely separate from military duties. That discretion cuts both ways, though. A commander who wants to make an example of someone has the statutory tools to do it, and the risk of confinement is not theoretical.
Where the Real Consequences Land: Divorce
For civilians, the practical price of an affair almost always shows up in divorce court rather than criminal court. In states that recognize fault-based divorce, adultery can affect how the marital estate is divided, whether alimony is awarded, and how much of it.
Alimony and Property Division
In a fault-based jurisdiction, a spouse who committed adultery may receive a smaller share of the marital estate or be denied spousal support entirely. Courts in those states can factor infidelity into who gets what and who pays whom. Pure no-fault states like California generally don’t consider adultery when dividing property or setting support.
A related doctrine is dissipation of marital assets. When a spouse spends significant marital funds on an affair, gifts, hotels, vacations, or rent for a partner, the other spouse can argue those expenditures were a waste of shared resources. If the court agrees, the judge can reduce the cheating spouse’s share of the remaining assets to compensate. The spending typically has to have occurred after the marriage was already breaking down and to have served no legitimate marital purpose.
Child Custody
Adultery rarely decides custody by itself. Courts evaluate custody under the best-interests-of-the-child standard, and having an affair doesn’t automatically make someone a bad parent. If the infidelity directly affected the children, by exposing them to inappropriate situations, disrupting their living arrangements, or drawing a parent’s attention and resources away during a critical period, a judge may weigh that. The affair itself matters less than its effect on the kids.
Getting Sued by Your Spouse’s Partner’s Spouse
A handful of states still allow civil lawsuits against the third party in an affair. The claims go by old common-law names: alienation of affection and criminal conversation. Alienation of affection targets someone who intentionally interfered with and destroyed a marital relationship. Criminal conversation is narrower and requires proof that the third party had sexual intercourse with the plaintiff’s spouse.
North Carolina is by far the most active jurisdiction for these suits, and juries there have returned substantial verdicts. A 2024 Carteret County case produced a jury award of over $5.5 million in combined compensatory and punitive damages. Hawaii, Mississippi, New Mexico, South Dakota, and Utah also recognize some version of these claims, though the litigation is less common. If you live in one of these states, financial exposure for the third party can be significant even though jail is not on the table.
Security Clearances and Federal Employment
If you hold or are applying for a federal security clearance, an affair can create a separate kind of problem. Under Security Executive Agent Directive 4, Guideline D covers sexual behavior as a potential security concern. The government’s concern isn’t morality; it’s blackmail. An undisclosed affair creates leverage a foreign adversary could use to pressure someone with access to classified information.5Office of the Director of National Intelligence. Security Executive Agent Directive 4 – National Security Adjudicative Guidelines
Guideline D flags sexual behavior of a criminal nature, conduct that makes someone vulnerable to coercion or exploitation, behavior reflecting a lack of judgment, and behavior violating the policies of the person’s employer.5Office of the Director of National Intelligence. Security Executive Agent Directive 4 – National Security Adjudicative Guidelines An affair in a state where adultery is still criminal technically hits two of those categories at once.
Mitigating factors exist. If the behavior is in the past, you’ve been forthcoming about it, and there’s no ongoing exposure to coercion, the concern can be resolved. The worst move is hiding it. An affair that’s out in the open is a personal embarrassment; an affair that’s secret is a security problem, and investigators generally care more about the concealment than the conduct.