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Divorce / November 09, 2022

Adultery and Divorce in Mississippi

Adultery is a factor in many divorces — one that may impact alimony and even child custody agreements. If an adulterous relationship leads to the breakdown of your marriage, you should know what to expect as you move forward with divorce proceedings.

At Derek L. Hall, PC, our trusted divorce attorneys provide personalized, compassionate service to every client to help them confidently navigate their divorce. With over 25 years of experience, trial attorney Derek Hall is respected for his aggressive representation, track record of success, and knowledge of Mississippi divorce laws. Contact our firm today to discuss your case during a free consultation.

What Is Considered Adultery in Mississippi?

The term “adultery” is often used interchangeably with “cheating” or “infidelity.” However, adultery has a specific meaning in the context of a Mississippi divorce case. Under Mississippi law, adultery occurs when a legally married person has voluntary sexual intercourse with someone who is not their spouse.

It’s considered adultery whether the sexual contact occurs only once or multiple times. This means a spouse who has a one-night stand has committed the same offense as a spouse who participates in a years-long affair. Mississippi’s courts have ruled that divorcing spouses can establish that adultery occurred by demonstrating an “adulterous inclination” and the opportunities to act on that inclination.

Unlawful Cohabitation in Mississippi

Adultery laws in Mississippi also consider “unlawful cohabitation” as adultery. Unlawful cohabitation occurs when a married person lives with a romantic partner who is not their spouse.

This practice is illegal while spouses are legally married, even if they have separated. If one spouse files for divorce and the other spouse decides to move in with a new romantic partner before the divorce is finalized, they can face criminal charges for unlawful cohabitation.

Condonation of Adultery in Mississippi

Mississippi’s courts have also specified that adultery only occurs in the event of uncondoned extramarital sexual intercourse. In other words, a spouse who knowingly allows their spouse to engage in extramarital sex or forgives their spouse’s infidelity probably would not have grounds for a divorce based on adultery.

It is difficult to prove whether someone has forgiven or condoned another person’s behavior. Mississippi divorce courts look at certain factors that could suggest the condonation of adultery. For example, condonation may occur when someone learns of their spouse’s infidelity but continues to live in the same household and be intimate with them.

Can Adultery Affect Alimony Awards in Mississippi?

Adultery is not the only factor a judge considers when determining alimony awards in Mississippi. But it can impact these decisions in some circumstances. For instance, if an adulterous spouse spent large amounts from the couple’s savings on an affair, the court could factor the lost savings into subsequent alimony payments.

Judges do not award alimony to punish spouses for engaging in adultery. However, they must consider adultery in their determinations, along with other factors like:

  • Each spouse’s relative income and cost of living
  • Each spouse’s health, education, and earning capacity
  • The debts and assets in each spouse’s name
  • The length of the marriage and each spouse’s age
  • The presence of any minor children in the home
  • The fault or misconduct of either spouse, including adultery
  • The wasteful spending of money or assets by either spouse
  • The likely tax implications of the alimony order
  • Any other factors the judge determines are relevant

Will Adultery Impact Child Custody or Support?

Generally, adultery does not impact child custody or support orders in a Mississippi divorce case. But it depends on the circumstances. The primary consideration in any child custody or child support determination is always the child’s best interest. When marital fault does not directly impact a child’s well-being, courts do not usually consider it in custody or support rulings.

However, family courts will look at each parent’s ability and willingness to provide a safe and supportive environment for their children. For example, if one parent begins a relationship with a violent criminal or registered sex offender and exposes their child to this dangerous individual, the court could limit or deny custody of that parent.

Proving Adultery in a Mississippi Divorce Case

Adultery is often challenging to prove in a divorce case unless one spouse confesses to their infidelity or the other spouse definitively catches them in the act. Those who seek divorce in Mississippi on the grounds of adultery must prove that their spouse had both adulterous tendencies and opportunities to satisfy their tendencies, which may be possible with the following types of evidence:

  • Statements from eyewitnesses who saw adulterous encounters
  • Photos or video footage of individuals engaging in adultery
  • Bank statements and financial records of spending in support of the affair
  • Communication confirming their infidelity

What Are Other Grounds for Divorce in Mississippi?

Adultery is grounds for a fault-based divorce in Mississippi, which means the couple is seeking a divorce because one or both spouses committed some type of marital misconduct. The other primary kind of divorce, no-fault divorce, is only an option when couples agree to separate due to irreconcilable differences.

Other grounds for a fault-based divorce in Mississippi include the following:

  • Natural impotence
  • Criminal convictions and periods of incarceration
  • Intentional abandonment of one spouse by the other for at least one year
  • Habitual drunkenness or narcotics
  • Habitual cruel and inhumane treatment
  • Mental illnesses or intellectual disabilities that either spouse did not reveal at the time of the marriage
  • Pregnancy from an outside relationship that either spouse hides at the time of the marriage
  • Spouses related to each other
  • Institutionalization of a spouse for three years due to mental illness

When to Speak with an Experienced Divorce Lawyer

If you or your spouse has filed for divorce on the grounds of adultery in Mississippi, you should speak with an experienced divorce lawyer right away. At Derek L. Hall, PC, our attorneys can help you through this challenging and emotional time. Contact us today to learn more in a free initial case review.

Note: This post was originally published in October 2017, but was updated for accuracy and comprehensiveness in November 2022.

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