Using DNA Tests To Determine Infidelity In Divorce Cases

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In recent years, courts have been hearing cases in which a spouse brings forward evidence that might be used to prove infidelity, such as stained clothing, carpet samples, brush samples and sheets. This may be – in part – because the use of DNA testing is on the rise in the criminal justice system.

Whether the case is in criminal or divorce court, in order for evidence to be admissible in court, items of evidence will need to undergo DNA testing and specific procedures for collections. What this means is that a laboratory technician may be required to collect and process items of evidence that will be used as DNA evidence in an infidelity case.

A common scenario in which a spouse might want to compel a suspected boyfriend or girlfriend to undergo DNA testing is in the case of a pregnancy. For example, a husband’s suspected girlfriend may become pregnant and the wife wants to find out whether her husband is the biological father of the baby. On the other hand, a wife may be pregnant and her husband suspects that he is not the biological father.

How common is infidelity in the United States?

Infidelity is reportedly more common among men than among women. According to DNAcenter.com, husbands reported cheating on their wives 21 percent of the time while wives reported cheating on their husbands 15 percent of the time. Between the years of 1990 and 2010, the reported rate of infidelity among women rose by 40 percent.

How often is infidelity the cause of divorce?

Perhaps not surprisingly, infidelity is listed in the top five reasons that couples divorce in the U.S. Almost 50 percent of marriages in the country end in divorce. Infidelity was listed as the fifth most common cause for divorce.

Criminal courts are using DNA testing with more frequency as the cost of testing decreases and the accuracy increases. Divorce lawyers are beginning to follow suit and are using DNA testing to settle questions of paternity and infidelity.

Can a spouse force an alleged boyfriend or girlfriend to submit to a DNA test?

There are situations in which one spouse may want to compel the boyfriend or girlfriend of the other spouse to undergo DNA testing. For example, one spouse suspects infidelity and there is a pregnancy involved. To establish paternity and possible child support arrangements, DNA testing may become a central issue.

At this point, there is not much legal precedent to establish whether or not a spouse can force a suspected boyfriend or girlfriend to submit to a DNA test. For the present, it is up to the courts to decide on a case-by-case basis. It is possible – but not likely – that a court will decide to compel a DNA test from a suspected boyfriend or girlfriend.

A divorce lawyer may be able to examine other case histories – or precedents – to determine the likelihood that a judge may compel DNA testing in a divorce case. In addition, the lawyer might examine the case to decide if DNA testing is appropriate or necessary.

For instance, if the divorce involves a pregnancy, DNA testing may be considered important to establish paternity and subsequent rights of inheritance, child support and child visitation. Depending on the state or jurisdiction some spouses may be entitled to additional alimony or spousal maintenance if he or she can prove infidelity on the part of the other spouse. A DNA test performed on items of clothing or bed sheets may provide important evidence that demonstrates infidelity.

While infidelity can cause emotional upheaval – and in some cases end a marriage – DNA testing can help to provide closure, prove paternity and may help a spouse secure additional alimony. It may take time for the legal system to catch up with the increasing use of DNA testing. In the meantime, divorce courts will have to decide the legality of compelling individuals to provide DNA samples in divorce cases.

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