I’m a divorce lawyer who clicks around Google quite a bit.  I came across some information that each month about 1600 Americans do a Google search for “infidelity testing.    So for November that number is now 1601; I had to see what all the searching was about.

When you search for “infidelity testing” you’ll mainly get links to sites that sell kits that are advertised as a way of detect semen in clothing.  They are marketing to the man who thinks his wife is cheating.  So you know where that is going and it is fascinating.

Let me start with quoting a testimonial from one of the high-ranking results for one of these test products:

“XXXXXX is the real deal. I had some clothing tested at a certified DNA Lab that is ISO certified and have all the legal certifications a lab has to have. The same clothing I tested with XXXXXX, the Lab found to be positive for sperm and semen. They even sent me micro pics of the little devils. All this was after I had the items checked with XXXXXX. This product is the real deal, case closed!!!!!!”

Case closed!  No, not really.  A review of the product and its implications left me with some unanswered questions:

• How could this benefit/hurt one of my divorce clients; and
• How could I get the results of one of these tests into evidence (perhaps over the chuckles of the district court judge?)?

Let’s explore these issues.

First, how could this benefit a client?

On one level solid proof of infidelity adds some certainty to what might have been simple concerns or a hunch about marital infidelity. This certainty allows the wronged spouse to make decisions about either working on the marriage or divorcing with more information, and in rational decision-making, more information usually helps.

Proof of adultery still has a place in North Carolina divorce law.  This kind of sexual behavior could impact alimony and divorce from bed and board cases.  Without going into many of the details in this article, the classic methods of proving adultery in North Carolina cases is by (1) someone admitting the adultery, (2) someone saying they saw the adultery, or more usually, (3) by circumstantial evidence of opportunity and inclination.

How could it hurt a client?

Unfortunately, the results could be wrong.  That could lead to bad consequences for the marriage and for the client if it is wrongly assumed the results are correct.

Second, from the clients’ point of view, they all say they want to know if their spouse is cheating or not.  I have had strong men break down crying in my office after I told them what our PI reported that the client’s wife had been up to.  It’s devastating knowledge.

It’s probably also the case that if a person is at a point of swiping their wife’s underwear to send off for testing at some location far away has some marital layers of distrust and underlying marriage problems that put them in the pipeline for a divorce.

How Could I get These Results into Evidence?

It would not be easy. In fact, I don’t think a judge is going to let one of the home test kit results into evidence.

In cases I have handled the district court judges are certainly open to allowing competent scientific evidence in, but there are rules and there are limits.  The science has to be good and the procedures have to be good.

There is chain of custody of the evidence issues, and there is the issue of authenticating the results.

About the only way to get this kind of DNA evidence in would be to have sent the sample off to a lab and then I would need to have an expert from the lab in to court to talk about the chain of custody and scientific method and procedures.   The chance of a judge simply letting the report in is remote.

Also, if I wanted to object to any of this going in, there is a fundamental problem of exclusion.  That is, how do we prove the semen found on the tested article is not that of the husband?  Would that add another level of scientific testing and proof?

In conclusion, with enough financial resources and great care in how this is gone about, there would be a possibility of certain kinds of testing and test results be deemed competent evidence.  However, when all is said and done it might have been better for the client to hire a private investigator to follow the suspected spouse.

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Raleigh divorce attorney Scott Allen has over seventeen years of experience in family law, contested alimony, and divorce from bed and board cases in Wake County and many other counties across North Carolina.

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.