Mississippi Criminal and Family Law BlogEvery divorce is a stressful process, but divorces stemming from adultery might come with the most heartache and pain. Adultery is one of the 12 grounds for fault-based divorce, and one of the biggest causes of divorce in the United States.
How is Adultery Proven?
Mississippi law defines adultery as “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Proving adultery can often be difficult. It is extremely rare for one spouse to be caught in the act of committing adultery, and it is unlikely that your spouse will admit to having an affair. Instead, adultery is most often proved by other evidence. This means that to obtain a divorce based on adultery, you must be able to show the court that your spouse had (1) an adulterous inclination (flirtatious manners) and (2) a reasonable opportunity (a private place and time) to act on that adulterous inclination.
Evidence in a divorce case based on adultery often involves testimony from witnesses, phone records, financial records, or correspondence between the alleged paramour (lover) and the adulterous spouse. It is important that the spouse alleging adultery have friends and family ready to testify that the adulterous spouse had both an adulterous inclination and the opportunity to act.
Condonation of Adultery
Condonation occurs when one spouse finds out about the other spouse’s affair but they continue to live in the marital home together and/or be sexually intimate with each other. If there is evidence of condonation by the spouse alleging adultery, the court may view this as a sign that the spouse alleging adultery has forgiven the cheating spouse, and the court may not grant the divorce on the ground of adultery.
How Adultery Affects Child Custody and Alimony
Adultery does not automatically disqualify a parent from getting full or joint custody of their child. However, a parent’s “moral fitness” is an important consideration in child custody decisions. Decisions about child custody arrangements focus on what is in the best interest of the child. If the court finds that adultery by one parent shows that parent has poor moral character, the court may find that it is not in the best interest of the child for that parent to have custody. However, many other considerations factor into determining what is in the best interest of the child, including the child’s age, relationship with each parent, and the child’s preference, among other things.
Adultery can also be a factor that the judge takes into consideration when deciding whether to award alimony. Judges do not award alimony to punish the unfaithful spouse, but judges do have to consider all the facts about any marital misconduct that occurred, including adultery.
Choosing a Divorce Attorney
If you know or suspect that your spouse has been unfaithful, it is important to contact a knowledgeable and experienced divorce attorney as soon as possible to discuss a potential course of action. Arguably the most important part of starting the divorce process is finding the right divorce attorney. If you have been searching the Mississippi area for a qualified, experienced divorce attorney, look no further than Vic Carmody Jr., P.A. Over the years, we have helped numerous families pursue favorable outcomes. Although facing divorce is not a pleasant experience, there are many potential strategies that can be used to protect assets and provide for family members in the event of divorce. Call/contact us today for your consultation to learn more.
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