Spousal infidelity divorce litigation, six common questions from evidence to custody
The atmosphere in the consultation room right after a spouse's infidelity is discovered is generally similar. Between anger and shock, the first question asked is, will this serve as evidence? The next question generally flows into, if I divorce, how will alimony, property division, and custody be handled? This article addresses the six questions most frequently raised in divorce litigation triggered by infidelity, drawing on the general trends of Korean family courts.
1. Can KakaoTalk screenshots and detective agency photos serve as evidence?
Messenger screenshots showing circumstances of infidelity are generally admitted as evidence without much issue. However, photos obtained through detective agencies depend on where they were taken.
| Evidence type | Generally admissible? |
|---|---|
| KakaoTalk and text screenshots | Generally admissible |
| Photos in public places (building entrances, main streets) | Generally admissible |
| Photos inside hotels or other private spaces | Tend to be excluded as illegally obtained |
| Location records from a shared spouse Google account | Generally admissible |
| Audio recording of the spouse's confession | Tends to be admitted as the strongest evidence |
| Recordings from wiretaps secretly installed in cars or phones | Generally excluded as a violation of the Protection of Communications Secrets Act, with risk of criminal liability |
The strongest evidence is ultimately a recording of the spouse's own confession. Recordings where the person was a direct participant in the conversation are generally admitted. Conversely, wiretapping where the person was not a participant in the conversation can lead to criminal punishment, so I never recommend it.
2. Can I claim alimony only from the affair partner without divorcing?
Yes. While maintaining the marriage, you can separately pursue an alimony claim against the affair partner. However, the amount recognized tends to be reduced. The court reasons that since you did not go as far as divorce, the damage is not enough to break up the household.
Alimony amounts recognized against affair partners are generally in the range of 15-20 million won, while alimony against the unfaithful spouse is often recognized in the 20-40 million won range. However, the possibility of alimony amounts being raised has been discussed following recent large-scale family cases.
3. What are favorable strategies for alimony, property division, and custody?
The strategy for each of the three areas is different.
- Alimony: Prove the period of infidelity as long as possible. The thicker the evidence — frequency of meetings, accumulated messages, economic expenditures — the higher the recognized amount tends to be.
- Property division: Separate your own property as separate-property excluded from division, and treat the other party's property as joint property included in division. Since the division ratio tends to converge to 50-50 nowadays, the scope of the subject matter divides the outcome more than the ratio.
- Custody: The child's gender, age, and usual attachment relationships are key. Infidelity itself does not generally strip custody.
4. Can the person who had an affair take custody?
Infidelity does not generally lead directly to loss of custody. If the infidelity causes the child to be unable to trust the parent, or if the child refuses to live with that parent, it affects the custody determination. However, apart from the infidelity, the usual involvement in caregiving, formation of attachment, and stability of the current caregiving environment are decisive.
Courts generally tend to prioritize the mother's custody based on traditional family views, but this is not an absolute principle. If the relationship between son and father is strong, or if the child has reached an age where daily life is possible without the mother (around end of elementary school or above), the father's custody can be fully recognized.
Even from the perspective of an attorney, custody is not something that can be suddenly created in court. Daily time spent is the foundation of custody.
5. How do I prevent my spouse from hiding assets during litigation?
Property division is in principle based on the time of conclusion of arguments in the trial. However, because cash assets (deposits, stock balances, etc.) are highly volatile, they are generally evaluated based on the time of marital breakdown (usually the time of filing the complaint).
Because financial transaction information can be inquired for up to 3 years prior to the complaint filing date, asset hiding occurring after that does not significantly affect the outcome. Conversely, since assets can be moved between the time the affair is discovered and the time the complaint is filed, if you have firmly decided on divorce litigation, having the complaint served at an unpredictable time is generally advantageous.
6. Can the proceedings be conducted so the children do not learn of the divorce?
The safest way to minimize shock to children is generally an uncontested divorce. An uncontested divorce requires court appearance but has the fewest external exposure routes. If agreement is difficult, many cases proceed to mediated divorce, where the burden of party appearance at the mediation stage is relatively small.
If you do not want to tell the children directly about the divorce, some choose to say we are living apart for a while and observe the children's emotional state. However, if the children are somewhat older they will generally find out eventually, so it is better to prepare a consistent explanation in advance.
Frequently asked questions
Q. I have gathered evidence of the affair. Should I file the divorce complaint right now? A. It depends on the situation. Depending on which is most important — alimony, property division, or custody — the additional materials to secure before filing differ. Starting with the list of materials and timing, I recommend Start a consultation by chat now.
Q. Can I first sue the affair partner for alimony and decide on divorce later? A. Yes. However, the recognized alimony amount tends to be reduced, and parts may be re-contested in future divorce litigation, so it is better to review comprehensively.
Q. Can recordings made with installed wiretaps really not be used at all? A. There is a possibility of criminal punishment and they are generally excluded as evidence, so I do not recommend using them. For the same information, secure recordings where you yourself were a direct participant in the conversation.
Closing
Divorce litigation triggered by infidelity is an area where emotions and legal reasoning collide most strongly. What evidence to gather and in what order to begin litigation generally divides the outcome significantly. If you are unsure where to begin, I recommend Start with an assessment.
Written by the Family and Inheritance Team of Jonjae Law Firm / Last reviewed 2026-05-30
This article is written for the purpose of providing general legal information and does not guarantee the outcome of any specific case. Because the facts differ in every case, please proceed only after individual consultation with an attorney.
