Infidelity as a basis for divorce in Utah

Infidelity is often one of the most emotionally charged issues in a divorce. In Utah, adultery is listed in the statute as a legal ground for divorce. But as the Utah Court of Appeals explained in a recent case, proving adultery for divorce purposes requires more than suspicion or even an admission. The timing and the evidence matter.

In the case of Nix v. Nix, decided in 2022, the Utah Court of Appeals reviewed whether a divorce could properly be granted on the ground of adultery. The key issue in the case was not whether infidelity occurred, but whether there was sufficient evidence that it occurred before the divorce petition was filed.

Under Utah law, adultery can only serve as a ground for divorce if it happened before the filing of the divorce petition. The court reaffirmed earlier Utah precedent holding that adulterous conduct that occurs after a divorce case has already been filed cannot, by itself, establish adultery as a fault-based ground for divorce. Conduct that happens later may sometimes be considered only to support or corroborate evidence of earlier infidelity, but it cannot replace proof that adultery occurred before the filing.

In Nix, the husband admitted during his deposition that he had sexual relations with another woman. However, neither the questions asked nor his answers established when that conduct occurred. The evidence showed that at least some of the conduct took place after the divorce was filed, but there was no evidence tying any infidelity to the period before filing.

The trial court initially treated the husband’s refusal to answer a deposition question as an admission that adultery occurred during the marriage. On appeal, the Court of Appeals reversed. The appellate court explained that even if a refusal to answer could be treated as an admission, the evidence still had to address timing. Because no testimony, documents, or admissions established that adultery occurred before the divorce petition was filed, the evidence was legally insufficient.

The court emphasized that judges cannot speculate or fill in gaps in the evidence. Even when reviewing the evidence in the light most favorable to the spouse alleging adultery, there must still be some evidence showing that the conduct occurred at the legally relevant time. Without that, a divorce cannot be granted on adultery grounds.

For someone considering an infidelity-based divorce in Utah, the case highlights several practical considerations. Evidence matters, but timing matters just as much. Admissions, text messages, photographs, or testimony need to connect the infidelity to a period before the divorce is filed. Evidence showing only post-filing conduct is not enough. Silence or evasive answers may also fall short if they do not establish when the conduct occurred.

The case also illustrates that adultery is a narrowly applied fault ground. Even where infidelity seems likely, courts require specific proof. For this reason, many divorce cases proceed on alternative grounds, such as irreconcilable differences, rather than attempting to meet the strict evidentiary requirements for adultery.

Nix v. Nix serves as a reminder that while adultery remains a recognized ground for divorce in Utah, it is not enough to show that an affair happened at some point during the marriage. To rely on adultery as a legal ground, there must be evidence showing that it occurred before the divorce case was filed.