The simple answer to this question in Rhode Island is yes. Rhode Island is not a so called community property state. Rhode Island is considered an equitable distribution state. This means a judge divides the marital assets, and marital debts, in accordance with equity, or fairness.
A Judge will absolutely consider a spouses infidelity when determining how to divide assets and debts. However, I must caution you that you will need to prove with particularity the alleged infidelity. Yes, this generally means audio or video proof. However, it could also come by a simple admission by your spouse.
Finally, a Judge will be reluctant to consider infidelity unless the marital estate warrants the consideration of the same. In other words, if you have a combined marital estate of $50,000.00 in assets, a Judge will not want to be bothered with discussing these issues. The main reason for that is the infidelity is rarely worth more than about a 10% shift in the distribution of marital assets.
In the above example, an equal distribution would mean $25,000.00 per party. However, If you can prove infidelity you might receive $30,000.00 instead of $25,000.00. The extra $5,000.00 is rarely worth the time, money and emotional costs of a contested divorce.
So when will a Judge consider a proven infidelity by your Spouse? Judges will generally look to longer term marriages with significant assets, or debts, which warrant the time and effort to determine how to apportion the same unequally. If you are determined to prove your Spouse was guilty of infidelity, do so cautiously and please take time to consider the ultimate value of such an undertaking.