In order to be divorced in Utah, a party must plead and prove a ground by a preponderance of the evidence. The Utah Code states ten grounds for divorce, which is found here: Utah Code 30-3-1(3). The most commonly pleaded ground for divorce is “irreconcilable differences.” However, it is still an option for a party to plead and prove adultery as a ground for divorce, though doing so is not necessary. “Irreconcilable differences” is just as valid a ground for divorce as “adultery.”

It is important to understand that the code specifically states that the adultery must be “committed by the respondent subsequent to marriage” Utah code Ann.30-3-1(3)(b). However, the adultery must also be alleged to have occurred prior to the filing of the Petition for Divorce. In a recent case, Nix v. Nix, 2022 UT App 83, The Utah Court of Appeals held that evidence of adultery committed “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce.” This means that evidence gathered of someone committing adultery after divorce has been filed is not relevant and is therefore inadmissible to prove adultery as a ground. However, evidence of adultery committed after filling for divorce can be relevant and admissible if such evidence lends, “weight to and corroborating testimony as to prior acts,” or acts committed during the marriage but prior to filing for divorce. Conceivably, sexual acts committed after filing for divorce could corroborate allegations of sexual acts occurring before filing for divorce, but adultery cannot be proven by only submitting evidence of sexual acts occurring after the divorce has been filed. There must be some evidence in the record of pre-filing sexual acts in order to allow evidence of post-filing sexual acts to corroborate the allegations of adultery occurring prior to filing.

In the Nix case, the only issue in dispute was whether Jill Nix could prove Adultery as a ground for divorce, as all other matters had been settled. You may wonder why a divorce litigant would want to spend money and time litigating grounds for divorce when all of the other important matters had been settled. It is entirely wasteful to spend time and money on the issue of grounds when all of the other issues have been resolved. This is because whether you prove grounds by “adultery” or by “irreconcilable differences” makes no legal difference when it comes to grounds for divorce. Although adultery can be factored into fault-based alimony, the alimony issues had already been settled, so it makes little sense as to why Jill Nix was so adamant that the Court find “adultery” as a ground for divorce. It may just be that the Jill Nix had moral or principled reasons to be able to say to others, herself, and her husband that the marriage failed because her husband had committed adultery. This silly, childish, and wasteful endeavor appears to have backfired, which is itself a lesson in good litigation strategy: worry only about what truly matters, what truly makes a real difference in the life of a party. The opinion from the Court of Appeals does not mention why Jill Nix was so adamant that the Court find adultery as a ground.

Be that as it may, Jill set out to prove her allegation of “adultery committed by Roland during the marriage.” During the litigation phase, Roland was deposed. During Roland’s deposition, he declined to answer a question from Jill’s attorney about whether he had “extramarital sexual relations since the marriage.” On a hearing on the matter of grounds, the district court decided that Roland’s non-response qualified as an adoptive admission that Roland committed adultery before Jill filed for divorce. Based on this conclusion, the court awarded Jill a divorce on the ground of adultery.

Roland appealed that decision because he believed that his non-response did not provide sufficient evidence to establish that Roland committed adultery before Jill filed for divorce, and the Court of Appeals agreed with him. The case was reversed and remanded, as there was no evidence that Roland committed adultery prior to filing for divorce. Jill’s crusade to prove Roland committed adultery could have been proved had Jill’s attorney asked Roland during his deposition something to the effect of, “Did you have sex with someone other than Jill prior to Jill filing for divorce.” If Roland remained silent in response to that specific question, then the district court may well have been justified in finding an adoptive admission of adultery committed prior to filing but during the marriage. In the words of the court, “While Jill’s counsel asked Roland whether he had engaged in extramarital sexual relations, Jill’s counsel never asked Roland when he had done so. As a result, with respect to the critical issue of timing, the question and non-answer that supported the court’s adoptive-admission determination were silent.”

Here is what was asked during the deposition:

[Jill’s counsel:] Have you had any sexual relations with someone other than Jill since the marriage?

[Roland:] It is none of your business.

[Jill’s counsel:] Counsel I am entitled to know.

[Roland’s counsel:] I question the relevance. I don’t think that adultery or anything has been alleged in the pleadings.

[Roland:] We are separated and that is none of their business.

. . . . [brief break taken by the parties]

[Jill’s counsel:] We left on the question of adultery. Mr. Nix what is your response?

Roland admitted he had sexual relations with someone not his wife, but he never admitted that he had sexual relations with someone not his wife BEFORE the divorce was filed. The timing of the sexual relations is the crucial aspect of this case, and the timing was not sufficiently established during the deposition in order to allow an adoptive admission of adultery before the filing to be established. Thus, the Court erred in awarding a divorce based on the ground of adultery.

By Harrison W.F.