New Hampshire decriminalized adultery in 2016, after 200 years of NH law that made it a crime. NH opponents of adultery prohibition argued, “Who we love and how we love is not something . . . the state has much business meddling in.” However, adultery remains relevant to divorce in the state as a ground for fault. A fault divorce is granted in New Hampshire only when one party is innocent; if both spouses had affairs, they cannot use adultery as a fault ground, and may need to get a no-fault divorce.
New Hampshire has caught up with the 21st century, but what about the rest of the U.S.? According to the Los Angeles Times, adultery is still illegal in 21 states, including New York, where former Governor David Patterson admitted to extramarital relationships in 2008, but said he “didn’t break the law.” Well, Governor, in New York, the state you ran, adultery is still a misdemeanor, punishable by a $500 fine or 90 days in jail. Fortunately for the guv, the law is rarely, if ever, enforced.
Today’s tolerant attitudes strongly suggest that it’s time to take the adultery criminal laws off the books. Only a third of Americans believe that adultery should be a crime. Why do any states retain the outdated laws? The L.A. Times quoted legal scholar Thurmond Arnold’s observation, ““Most unenforced criminal laws survive in order to satisfy moral objections to our established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.”
Prosecutions for adultery are rare, but they do occur, and could arise in any of the 21 states that still have criminal prohibitions on adultery. Most contemporary adultery prosecutions have involved complaints by an aggrieved spouse. A recent article in favor of reform in salon.com argued, “enforcement of criminal prohibitions has been infrequent, intrusive, idiosyncratic, and ineffectual, and should be unconstitutional.” Courts should not allow adultery to influence employment cases as a basis for demotion or firing, nor influence alimony and custody awards. The writers noted, “None of these reforms should be seen as diminishing societal respect for marriage as an institution.”
The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.