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Proving adultery in a Mississippi divorce

On Behalf of | Dec 15, 2023 | Divorce

Divorce has become much more common over the years and in many ways no longer holds the stigma that it once did. This has led many states to adopt what is called “no-fault” divorce, which essentially means that you can divorce your spouse without having to provide a reason other than stating that your marriage is irretrievably broken.

Mississippi is not one of those states. Although Mississippi does have no-fault divorce, you can only obtain a no-fault divorce when you and your spouse both want the divorce. You must also agree on divorce-related issues, such as custody, alimony and property division.

If your spouse does not agree to the divorce, you get can divorced only through a fault divorce. There are 12 grounds for divorce under Mississippi law. You must assert one or more of these grounds and the court will decide whether to grant your divorce.

How is adultery defined?

A cheating spouse is one reason many marriages end. Adultery is one of the 12 divorce grounds. Mississippi law defines adultery as any voluntary sexual intercourse with someone who is not one’s spouse.

The frequency of intercourse does not matter. Whether your spouse had a one-night stand or a long-term affair, both count as adultery under the law. Since adultery is also a crime in Mississippi, your spouse moving in with someone other than you is unlawful cohabitation and could also be considered adultery.

However, to receive a divorce, you must prove the adultery occurred. This can be hard to do. Your spouse may deny committing adultery or might admit to it but want the marriage to continue.

Direct evidence of adultery

Unless you have direct evidence of your spouse confessing to it or photos or videos of them in the act, proving adultery will likely be challenging. You must show both that your spouse had adulterous tendencies and that they had an opportunity to satisfy these tendencies.

Adulterous tendencies can have many different meanings. It can mean your spouse was generally flirtatious or that they were attracted to or infatuated with a specific person.

Since direct evidence is usually hard to obtain, you may need to use circumstantial evidence of adultery.

Circumstantial evidence of adultery

There is no definite answer about how much circumstantial evidence you need. Circumstantial evidence can come in many different forms such as witness testimony, photos, videos or communications discussing the affair. Bank statements showing financial transactions related to the affair could also be good circumstantial evidence.

You do not need to prove the adultery occurred beyond a reasonable doubt. Since divorce is a civil case, you must have clear and convincing evidence of adultery, which means it is highly and substantially more likely to be true that the adultery occurred.

If you are sure that a divorce is what you want, be careful about the actions you take after finding out your spouse has cheated. Evidence that you continued to live with your spouse, told them that you forgive them or had sexual relations with them after you found out about their affair could be evidence of you condoning adultery.

This could impact your ability to get a divorce. However, unless you admit to it, condoning adultery is often difficult to prove in divorces based on adultery.