Adultery
Let’s be clear what we’re talking about: sex. Emotional affairs might feel like adultery, and they might serve as indicators that a spouse wants to commit adultery, but without sexual consummation, an emotional affair — if that’s all it is — is not adultery for purposes of divorce.
When we say sex, we mean sex during the marriage. Even if the spouses have been separated for a long time, if they are still legally married, sex with someone else is adultery. Even if the sex does not take place until after the parties have filed for divorce, since they’re still legally married, sex with someone else is adultery.
HOW TO PROVE ADULTERY
The good news is that you do not need to catch someone in the act. The law recognizes that due to the secretive nature of the act, it would be unfair to require proof of the guilty spouse in flagrante delicto (caught in the act).
Instead, you are required to prove that your spouse had an adulterous inclination and also had the opportunity to satisfy that inclination. The shorthand that lawyers use is inclination and opportunity.
Inclination can be proved by your spouse repeatedly going out with the other person, holding hands, kissing, exchanging love notes, substantial texting (particularly at all hours of the day and night), i.e., the emotional affair described above. The proof will have to rise above the “we’re just friends” defense that we all learned in high school. We’re consistently surprised at the social media posts of married people who pose with their paramour, as if their spouse will never find out, and the willingness of married people to post a profile on dating apps. Your wife’s Tinder profile is strong evidence of an adulterous inclination. But you knew that already.
Opportunity is being with a paramour long enough to satisfy the inclination and in a setting where the two have the legitimate opportunity to consummate the relationship. Going to a hotel room or other dwelling is proof of opportunity, unless it is only for a moment, or they are with others. Obviously, there are thousands of situations and scenarios in which this can arise, but the idea is that (a) the spouse was inclined to cheat and (b) was in a place/situation where cheating was likely to have occurred.
The easiest route to proving adultery is Confession, which occurs surprisingly often. By the time spouses have decided that they are definitely getting a divorce, they often see no reason to lie about their affair. Of course, incriminating emails, voicemails, and text messages can serve as unwitting confessions of adultery.
There is nothing unusual about lawyers taking the deposition of the accused spouse and suspected paramour, to see if their stories line up. Being put under oath, with the threat of felony perjury for telling lies, tends to make people be a little more honest about their affairs.
DEFENSES TO ADULTERY
“I Didn’t Do It”
The accusing spouse has to prove the adultery, so the accused does not have to prove innocence. Just as in a criminal case, the defendant does not have to prove that he didn’t commit the crime, he merely has to convince the jury that the prosecution failed to prove that he did commit it.
Still, in a criminal or a divorce trial, the accused will rarely offer no evidence to disprove, or at least poke holes in the other side’s case. As the spouse being accused, you will want to explain why your spouse’s evidence of your adultery is not as conclusive as it might appear.
We have written a separate article on the question of whether you can invoke the Fifth Amendment privilege against self-incrimination and refuse to answer questions about marital misconduct. You can read that article here, since the question is too complicated for a simple Yes or No answer.
That issue aside, there is a profound difference between saying, “I didn’t do it,” and “My spouse hasn’t proved that I did it.” The latter requires far less proof than the former. The general rule in Mississippi is that adultery is not proved if there is a reasonable explanation for why the accused spouse is innocent in spite of the accuser’s evidence.
In a famous Mississippi case decided in 2008, a wife denied ever spending the night at her alleged lover’s apartment. But a private investigator videotaped the wife and the man going into his apartment and then spending three consecutive nights there.
However, the video did not show the pair being affectionate with each other (i.e., it did not show hand-holding, hugging, kissing, or other “adulterous inclination,” discussed above).
The wife testified that she was only in the apartment because the man was ill, and she was caring for him the entire time. She denied that they had sex. Moreover, she said that another woman was at the apartment at all times. The private investigator said that he never saw this other woman entering or leaving the apartment but admitted that he could not definitely say that nobody else had been in the apartment while it was under his surveillance.
Since the wife had an innocent explanation that was not disproved by the husband’s evidence, the court found that the trial judge did not err in finding that the husband failed to prove adultery. Undoubtedly, other judges considering the exact same evidence might have reached the opposite conclusion. Nevertheless, what is interesting about the case is that the wife did not deny any of the husband’s evidence. [She didn’t deny being in an apartment for three consecutive nights with the man who wasn’t her husband.] Instead, she provided the judge with an innocent explanation — an alibi, which the husband’s evidence did not disprove. This is the essence of the I Didn’t Do It defense.
“It is far easier to forgive an enemy than to forgive a friend.”
Condonation — I Did It, But You Forgave Me
There is a common misconception that if you are guilty of adultery, it can’t be used against you if you can get your spouse to have sex with you after the adultery took place. This is simply wrong.
Or to be more accurate, this is a gross distortion of the defense of Condonation. Here’s how it actually works. The idea of condonation is forgiveness, not sex.
If your spouse knows about your adultery, and if you promise to be faithful, and if your spouse then forgives you, and if you keep your promise and remain faithful, then your adultery cannot be used as a fault ground against you. Your spouse will be deemed to have forgiven — condoned — your adultery.
Note that all four of those conditions apply. First, your spouse has to know about the affair. Your spouse cannot forgive/condone what they don’t know about.
Second, you have to promise that you will be faithful from now on. There’s no point in being forgiven for something that you have no intention of stopping.
Third, your spouse has to forgive you. This is commonly demonstrated by your spouse resuming intimate relations with you, but sex doesn’t necessarily equate with forgiveness. Sex can indicate forgiveness, but just having sex does mean that your spouse has forgiven you. That’s how it is in real life, and that’s how it is in the courtroom, too.
Fourth, you really do have to keep your promise. If you are unfaithful even once after being forgiven, the law treats the forgiveness as if it never took place. This means that not only are you guilty of the post-forgiveness adultery, but you are also guilty of the pre-forgiveness adultery (the act that you were originally forgiven for), too.
Connivance — I Did It, But You Went Along With It
It sometimes happens in a marriage that an innocent spouse decides that, rather than get a divorce, it would be wiser to “look the other way.” Divorces are messy, public, and can lead to a substantially diminished standard of living. When the agreement (that the guilty spouse can cheat so long as he is discreet) becomes explicit, whether by silence or feigned ignorance, the innocent spouse has connived at the adultery.
There are also couples who agree to an open marriage. For example, one spouse might lose all interest in sex and agree that the other can have extra-marital relationships. In both instances, open marriage and “looking the other way,” the spouses have connived at the ongoing adultery.
Connivance is a defense against the fault ground of adultery. It differs from condonation because the latter assumes repentance over and forgiveness of an illicit act in the past that will not be repeated. In contrast to condonation, connivance occurs when the parties reach an understanding that the adultery will continue.
Recrimination — I Did It, But You Drove Me To It
In 1938, the Mississippi Supreme Court held that a wife whose husband “beat her unmercifully” was not entitled to a divorce. Why not? Because, according to the court, the wife’s “vile epithets” directed at his family drove her husband to beat her. This is the archaic defense of recrimination, or “you drove me to do it.”
Legal commentators are unsure whether recrimination is still a valid defense in Mississippi. But the word recrimination appears from time to time in divorce papers, often without even the lawyers knowing what it means. The basic idea is that if the accusing spouse is guilty of substantial marital misconduct, that spouse should not be awarded a divorce — particularly if their misconduct provoked the fault grounds. One court compared recrimination to the biblical idea that if you have a beam in your eye, you cannot complain about the splinter in your spouse’s eye.
A spouse pleading recrimination is not denying his adultery, nor alleging that his spouse agreed to it or forgave it. Instead, he is claiming that, because his spouse drove him to it, his adultery should not be held against him.
