In almost every state, you cannot sue your wife for cheating on you. The act of infidelity itself is no longer a basis for a civil lawsuit against a spouse. That said, the affair is not legally weightless: it can shift how assets and support are divided in your divorce, a handful of states still let you sue the other man, and separate claims exist when the cheating caused concrete harm like a transmitted disease.
Why You Cannot Sue Your Wife Directly
Betrayed spouses used to be able to sue under a group of claims known as “heart balm” torts, which treated a spouse’s fidelity as something with monetary value. Most states abolished those claims decades ago, and courts came to describe them as relics of an outdated view of marriage that treated loyalty as a form of property.
The move to no-fault divorce finished the job. Once you no longer had to prove wrongdoing to get divorced, a separate lawsuit built on the same conduct lost its footing. Today, filing a civil suit against your own wife because she had an affair is not a realistic option in any state that matters for practical purposes.
Suing the Other Man
Suing the third party is a different question, and in a small number of states the answer is yes. Alienation of affection and criminal conversation claims survive in roughly half a dozen jurisdictions, including Hawaii, Mississippi, North Carolina, South Dakota, and Utah. New Mexico allowed these claims until its Supreme Court abolished the cause of action in early 2026.
Alienation of Affection
This claim targets a third party for interfering in the marriage and destroying the marital bond. You have to show that a genuinely loving marriage existed, that the love and affection between you and your wife were destroyed, and that the defendant’s conduct caused it. The claim does not require proof that anyone had sex; emotional interference that wrecked the marriage can be enough. North Carolina juries have returned individual verdicts as high as $8.8 million and $30 million, though large awards are often reduced or settled down.
Criminal Conversation
Despite the name, this has nothing to do with criminal law. You need to prove only two things: a valid marriage, and that the defendant had sexual intercourse with your wife. Whether the defendant knew she was married, or intended any harm, is generally irrelevant.
What Can Defeat These Claims
Even where these claims are alive, winning is not automatic. Common defenses include:
- The marriage was already failing before the third party appeared, breaking the causal chain.
- Post-separation conduct doesn’t count. In North Carolina, for instance, no act by the defendant supports a claim if it happened after the spouses physically separated with the intent to stay apart permanently.
- The statute of limitations, commonly three years, has run.
- Your wife made her own independent decision to pursue the affair or leave, without encouragement from the defendant.
These lawsuits are expensive, emotionally punishing, and public. Court filings become public record, and the intimate details of the marriage get worked over in depositions and at trial.
How the Affair Can Cost Her in the Divorce
The most practical financial consequences for a cheating spouse usually come through the divorce itself, not a separate lawsuit. How much weight the affair carries depends on the state.
Alimony
In states that treat marital misconduct as relevant, a judge can increase support to the betrayed spouse or reduce or deny support to the one who cheated. It is rarely automatic. Courts still look at income, earning capacity, and needs alongside the misconduct. Other states largely ignore fault; California, for instance, bases spousal support almost entirely on financial need and ability to pay, and adultery alone is unlikely to change the calculation.
Dissipation of Marital Assets
This is where cheating most reliably hits the wallet. If marital money was spent on the affair — gifts, hotels, rent on a separate apartment, vacations, cash to the affair partner — you can argue dissipation, also called marital waste. Courts treat the dissipated funds as if they still existed in the marital estate, so her share of the property division shrinks by what she spent.
You carry the initial burden of proof. Bank statements, credit card records, and other financial documents showing unexplained spending are the backbone of the claim. If that evidence is persuasive, the burden shifts to her to justify the expenditures. A forensic accountant can trace hidden transactions in higher-asset cases. This adjustment happens inside the property division, not as a separate suit.
Custody
Adultery by itself rarely determines custody. Courts decide based on the child’s best interests, and a parent’s sexual behavior outside the home usually does not affect their fitness. The exception is when the affair created conditions that harmed the children — exposing them to the relationship in destabilizing ways, or neglecting parental duties while pursuing it. The focus stays on the children, not on punishing the cheating parent.
Infidelity Clauses in Prenups and Postnups
If you signed a prenuptial or postnuptial agreement with an infidelity clause, that document may already give you a financial remedy. These clauses typically shift a larger share of assets to the faithful spouse or cut off spousal support for the cheating one.
Courts in many states will enforce such clauses, but only if the agreement clears the usual bars: full financial disclosure by both spouses, voluntary signing without coercion, and terms that are not unconscionable. A clause stripping the cheating spouse of every asset will likely be struck down as punitive. More moderate financial adjustments have a better chance of surviving review. Each spouse having independent counsel when the agreement was drafted also strengthens enforceability.
Civil Claims Tied to Actual Harm
Sexually Transmitted Disease
If your wife contracted an STD during the affair and passed it to you, you can sue her for personal injury. Every state recognizes this as a tort. The theories are usually negligence, if she knew or should have known she was infected and failed to take precautions, or battery, if she knowingly had sexual contact while concealing her status. Damages can include medical costs, pain and suffering, and sometimes punitive damages when the concealment was deliberate. This is not a claim about the emotional betrayal; it is about the physical injury.
Intentional Infliction of Emotional Distress
An IIED claim based on an affair is technically possible but almost never succeeds. The conduct has to be “extreme and outrageous” beyond what any reasonable person would tolerate. Courts have consistently held that an affair alone, however painful, does not clear that bar. Something more is required, like deliberate public humiliation designed to inflict psychological harm.
Gathering Evidence Without Creating New Problems
How you collect proof matters as much as what you find. Common investigation tactics can expose you to criminal charges or civil liability, and illegally obtained evidence is often inadmissible anyway.
Recording Conversations
Federal law lets you record a conversation you are part of without telling the other participants — the one-party consent rule. Roughly a dozen states require all parties to consent. Recording your wife’s phone calls with someone else, where you are not a participant, violates federal law regardless of state. And even under one-party consent, the recording becomes illegal if it is made to commit a criminal or tortious act.1Office of the Law Revision Counsel. United States Code Title 18 – Section 2511
Phones, Email, and Social Media
Reading your wife’s texts, logging into her email, or getting into her social media without permission can violate the federal Stored Communications Act. Courts have found that logging into a spouse’s email account without permission qualifies. Violations can lead to criminal penalties and civil damages. Even knowing the password because she once shared it doesn’t help if she has since revoked permission or changed her expectations of privacy.
GPS Tracking
Many states have laws specifically prohibiting electronic tracking without consent. Violations can be charged as misdemeanors, and the tracked spouse may be able to get a protective order. Unauthorized tracking can also trigger stalking charges. Even a jointly owned vehicle can create problems depending on the state’s privacy laws.
The safer route is to work with a family law attorney or a licensed private investigator who knows the surveillance rules in your state. Evidence collected legally carries weight in court. Evidence collected illegally can be excluded and can leave you facing your own legal exposure.
Is Adultery Still a Crime?
Adultery remains on the books as a criminal offense in roughly 16 states, usually as a misdemeanor. A few states go further: Michigan and Oklahoma authorize up to five years in prison, and Wisconsin allows up to three and a half years plus fines reaching $10,000. Prosecutions are extremely rare, and many legal scholars consider these statutes effectively unenforceable. The laws have not been repealed, but no one should expect the police to get involved because of a cheating spouse. Where these statutes matter is indirectly, in some states bolstering fault-based divorce claims or arguments about misconduct in property division and alimony.