When does online or text flirting become cheating? That is not a simple question to answer in the context of a divorce but a recent article has articulated nine red flags that may indicate that more than flirting is occurring.  While none of the listed factors are proof that a spouse is cheating, they are an excellent indicator that more investigation is needed. In fact, a study indicated that the Internet is typically the first step toward the ultimate goal of real-life cheating.  If you suspect your spouse is cheating, call us immediately because you may need to act quickly to preserve evidence critical to your divorce.

You either caught your spouse cheating or your spouse caught you. Divorce is imminent. Does the “guilty” spouse lose custody of the kids because of his or her adultery? Not necessarily.

There are many factors contemplated by the court in determining child custody. These are known as the Albright Factors, – a custody test provided by the Mississippi Supreme Court in 1983. As to marital fault, Albright specifically says:

Marital fault should not be used as a sanction in custody awards.

The Supreme Court wants the best interest of the children to prevail, and in Albright, it recognized that in some cases the better parent is not necessarily the better spouse.  So, marital fault in and of itself is not the dagger to custody hopes many people believe. However, in some cases the underlying behavior that leads to the finding of marital fault is critical. For example, in the case of a parent who participates in an adulterous relationship in the presence of his or her child, the Court will most likely find against that spouse as to “moral fitness of the parent” – a key Albright factor.

If you have questions concerning marital fault and custody, speak to an attorney as soon as possible.

Unless you have been living in a hole with no access to news, you have undoubtedly heard of the scandal involving Congressman Anthony Weiner, who recently resigned after it was revealed that the married congressman had sexual conversations with females, sent females lewd photographs of himself and then publicly blamed the fiasco on a “hacker.” What started as a foray into the temptations of internet anonymity and access, ended with public embarrassment, career destruction and possible divorce. Weiner’s public self-destruction teaches the average married person a valuable lesson in trust, proper marital boundaries and the use of technology to facilitate “internet infidelity.”

Engaging in sexual conversations, flirting and conversing with someone other than your spouse via email, Twitter, Facebook or text messaging destroys the trust between spouses. Often, the ease of communication can lead to very intimate “electronic” relationships that give the appearance of infidelity.  In my opinion, the presence of an “internet infidelity” can be just as devastating to a marriage as a physical affair because the innocent spouse will always believe that a physical affair has occurred or is in the process of occurring. Once the suspicion of an affair takes hold, a divorce complaint often follows since the discovery of adultery usually begins with suspicion.

Adultery is a ground for divorce in Mississippi and is defined as “voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982). Because of the secretive nature of adultery, direct proof is not required and one may prove adultery by circumstantial evidence. Essentially, to prove adultery by circumstantial evidence, the proof must show (1) a spouse’s adulterous nature, which usually involves infatuation or adulterous inclination and (2) a reasonable opportunity to act on the infatuation or inclination.  Facts that support a finding of adultery have been secretive actions by a spouse, frequent telephone calls and letters to a suspected paramour.  Clearly, engaging in intimate conversations with someone not your spouse over the internet, by text message or other means will likely satisfy the element of proving infatuation or adulterous inclination.  However, unless you are able to prove a reasonable oppurtunity to act on the infatuation or adulterous inclination, then you will be unable to obtain a divorce on the basis of adultery (unless there is an admission or some form of direct proof).

Engaging in actions such as those committed by Anthony Weiner may not constitute grounds for divorce alone, but it is likely that with proper investigation, proof of reasonable opportunity may be discovered.  If you suspect your spouse is committing adultery and you are considering divorce, it is important that you speak with a lawyer before confronting your spouse.  With proper legal advice, steps may be taken to preserve evidence and to make sure you are able to present the strongest case possible. Additionally, if you suspect adultery, it is critical that you do not resume a sexual relationship with your spouse because if you do, the law considers you to have forgiven your spouse of the adultery and you will be unable to use the adultery as a ground for divorce. You may ultimately decide that forgiveness is the best course of action for your family but you should first seek legal advice from a competent divorce attorney so that you have the knowledge to make an informed decision as to your marriage.

Recently, a company called SafeGuard Marketing Management, Inc. began selling a product called “Divorce Insurance.”  You certainly have to admire the ingenuity of a company to come up with a product like this.  However, the value of the product is questionable both morally and financially.  If you are contemplating marrying the love of your life, but at the same time anticipating a divorce, then you should probably just skip the pain and not get married.  The concept of “divorce insurance” trivializes marriage and in my view, encourages people to make no effort to resolve their differences.  In fact, it would actually provide an incentive to divorce and contribute to the destruction of many families.  If potential spouses want “insurance” against divorce, then their money would be better spent by investing in premarital counseling and marriage counseling, if problems arise.   Here is an article written by an attorney in California that expands further on the topic.

The typical scenario when a spouse learns that the other has done something that destroys the marriage is that the innocent spouse meets with a lawyer, who guides the spouse through the divorce process.  Occasionally, though, you find that while listening to the “outrage” that a client expresses over learning that their spouse has had an affair you also learn that your “innocent” client has also been having an affair.  So what do you do if a client wants a divorce but both spouses are committing adultery?  An agreed resolution on the ground of Irreconcilable Differences would be the preferable outcome, but litigation may be the only option in some circumstances.

The Mississippi Supreme Court recently addressed a similar scenario in Jenkins v. Jenkins.  In Jenkins, the court was faced with a situation where the lower court granted a person a divorce on the ground of Habitual, Cruel and Inhuman Treatment.  The guilty spouse tried to defend the charge by claiming the defense of “recrimination”, which is a common-law defense that states if each party proves a fault ground for divorce then neither is entitled to a divorce.  The defense of recrimination has been altered by Miss. Code Ann. 93-5-3, which allows a court to grant a divorce, even if both parties prove a fault ground for divorce, by determining which spouse’s actions constituted the proximate cause of the destruction of the marriage.  The Mississippi Supreme Court determined that although the wife admitted committing adultery, the trial evidence showed that the husband’s habitual, cruel and inhuman treatment was the cause of the divorce, not the wife’s adultery, and that the lower court properly denied the husband’s recrimination defense.

Although a scenario where both parties are committing actions that constitute divorce grounds is not the preferable situation, a spouse may still be able to obtain a divorce without his/her spouse’s consent if the facts are supportive.  If you find yourself in this situation, speaking with an attorney to help analyze the proximate cause of the destruction of the marriage very early on is vital.

Until recently, everyone knew Tiger Woods as one of the most successful wealthiest sports figures in history. Unfortunately for his family, he is now known as an unfaithful husband whose ever-growing list of paramours will surely haunt his wife for years to come.    The damage caused by adultery though is the same, whether you are Tiger Woods or Joe the Plumber.

In Mississippi, for a spouse to prove adultery, there must be clear and convincing evidence of both an adulterous inclination and a reasonable opportunity to satisfy that inclination.  Adultery can be proven by circumstantial evidence because the secretive nature of adultery normally prevents someone from obtaining direct evidence of what occurred behind closed doors.  The evidence of adultery must be logical and be inconsistent with a theory of innocence.  A classic example would be evidence that a husband claimed to be going on a business trip to another state but was seen kissing a woman (not his wife), entering a local motel room her and not leaving until the morning.  Of course, this does not provide any evidence of what occurred in the motel room but the evidence would clearly demonstrate facts inconsistent with a theory of innocence and would likely result in a finding of adultery.

In a Mississippi divorce case, once a spouse proves adultery, the court will decide issues such as child custody and the division of assets.  So not only does the innocent spouse discover the cheating ways of the adulterous spouse, everyone takes a large financial hit with the asset division.  Sadly, however, the pain caused by adultery does not always end quickly.  Often, the destruction of trust caused by the cheating impacts people’s ability to act reasonably after a divorce is concluded.  This usually manifests itself in an unreasonable level of anger, an inability to communicate with the former spouse and frequent post-divorce contempt actions.  It can even result in a lawsuit being filed against the paramour for Alienation of Affections.  Adultery is possibly the most destructive of the divorce grounds in Mississippi.

If you are the innocent spouse in an adultery situation, it is important to speak with a lawyer quickly to determine the best way to preserve evidence if you decide to pursue a divorce and so that you will understand what is necessary should you pursue a divorce.  Even resuming normal marital relations with your spouse after learning of an affair may drastically impact your ability to pursue a divorce on the ground of adultery.

As for Tiger, his adulterous actions may cost him his family, fortune and possibly his career.  He will still remain a wealthy after a divorce, but the image he cultivated over the years that has contributed to his staggering earnings has likely been permanently tarnished.

To get a divorce in Mississippi, spouses must either agree on a divorce on the ground of irreconcilable differences or prove that one of the causes for divorce that are specified in Miss. Code Section 93-5-1 exist.  The causes for divorce listed in Section 93-5-1 are:

1.  Natural Impotency

2.  Adultery

3. Being sentenced to any penitentiary, and not pardoned before being sent there

4.  Willful, continued and obstinate desertion for the space of one (1) year

5. Habitual drunkenness

6. Habitual and excessive use of opium, morphine or other like drug

7. Habitual cruel and inhuman treatment

8. Mental illness or mental retardation at the time of marriage, if the party complaining did not know of that infirmity

9. Marriage to some other person at the time of the pretended marriage between the parties

10. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of the pregnancy

11. Either party may have a divorce if they are related to each other within the degrees of kindred whom marriage is prohibited by law

12. Incurable mental illness

Obviously, some of the divorce grounds are going to be more frequently used than others.  For example, adultery and habitual, cruel and inhuman treatment are the most commonly asserted grounds for divorce while others like natural impotency and being related to one another are very seldomly asserted.

In later posts, we’ll discuss in more detail the individual grounds for divorce and what constitutes each ground.  If you are considering a divorce, a quick review of the allowable divorce grounds should provide an overview of what circumstances need to exist in order to get a divorce without the consent of your spouse.