Divorce (Part IV)—Adultery
The Cheating Spouse
The third most common fault-based grounds for divorce in Mississippi is adultery. Although many folks think their spouse might have cheated on them and list it in a Complaint for Divorce, Mississippi courts only granted divorces based on adultery in 2.7% of the cases in 2005.
While direct evidence of an adulterous relationship is not required (and usually difficult to obtain), it must be proven that there was both “an adulterous inclination and a reasonable opportunity to satisfy that inclination.” But, the burden of proof is higher than in most civil cases. Adultery must be proven by “clear and convincing evidence.”
When there is no direct proof of a sexual relationship (e.g., testimony from one of the participants admitting to the sexual affair), circumstantial evidence (evidence which proves a fact by inference) can be used. However, Mississippi courts require that the evidence be sufficient to prove guilt, not suspicion, of an adulterous relationship.
Adultery is not a valid ground for divorce if it is shown that “it was committed by a collusion of the parties for the purpose of procuring a divorce.” This rarely arises in these days of divorce based upon irreconcilable differences. Further, if your spouse cheats on you and you take them back, you can not later complain that the adultery committed before you took them back is grounds for divorce.
If you believe that your spouse is cheating on you, you would be wise to start gathering evidence early on to substantiate this claim, assuming you are going to divorce them. In the future, I will talk about some tips to look for in whether your spouse is cheating and what you can do to help prove this fact in court.
