Easier Said than Done: Proving Adultery in Mississippi Divorces

Adultery is one of the most utilized grounds for divorce. As unfortunate as it may sound, many spouses commit adultery. There are countless psycho-social studies and surveys aimed at figuring out “why” spouses engage in adulterous activity. But, in the divorce context in Mississippi, why a spouse commits adultery is not really all that important. When considering divorce on grounds of adultery in Mississippi, a person should know (1) the definition of “adultery” and (2) how to prove it.

Defining Adultery

Most people associate “cheating” with adultery. But, “cheating” is not necessarily always “adultery,” because “cheating” is subject to varying interpretations. To some, “cheating” may merely involve intimate conversation with, or thoughts about, another person, without any physical contact; while others think only physical, sexual contact with another person qualifies as “cheating.” Mississippi law adopts the latter in its definition of “adultery.” Mississippi law defines adultery as the “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982) (emphasis added). Also, it does not matter how frequent, or infrequent, a spouse commits adultery. As the Mississippi Supreme Court has explained, “a one night stand does not make [] sexual misconduct any less adulterous.” Davis v. Davis, 832 So. 2d 492, 496 (Miss. 2002). So, adultery involves sexual intercourse with a third-person, and one instance of such conduct is enough to be characterized as adultery in Mississippi.

Proving Adultery

The Mississippi Supreme Court has said that to prove adultery, a plaintiff-spouse must show by clear and convincing evidence that the other spouse exhibited both an (1) adulterous inclination and a (2) reasonable opportunity to satisfy that inclination. Larson v. Larson, 122 So. 3d 1213, 1215 (Miss. Ct. App. 2013). An “adulterous inclination” requires proof of either the defendant’s infatuation with a particular person or general adulterous propensity. Id. More so, adultery may be proven by either direct evidence or, given the inherently secretive nature of adulterous conduct, by circumstantial evidence. Id. But, “[w]here the plaintiff relies on circumstantial evidence as proof for his allegations, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to conclusion of guilt.” Dillon v. Dillon, 498 So. 2d 328, 330 (Miss. 1986). So, the plaintiff-spouse seeking a divorce based on circumstantial evidence of the other spouse’s adulterous misconduct retains the burden of proof at trial; instead of the burden shifting to the defendant-spouse to prove otherwise.

In the civil context, the “clear and convincing evidence” standard is a relatively high burden to satisfy. The Supreme Court has stated that, “the burden of proof is a heavy one in such cases because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence.” Owen, 422 So. 2d at 287. More recent 2013 cases such as Fore v. Fore, Larson v. Larson, and Gillespie v. Gillespie demonstrate how this standard is applied in context of certain circumstances and facts, and to some extent, demonstrate the heavy burden required to satisfy the “clear and convincing evidence” standard.

In Fore, both the husband and wife filed for divorce, accusing each other of committing adultery. Fore v. Fore, 109 So. 3d 137, 138 (Miss. Ct. App. 2013). Regarding the wife’s alleged adulterous conduct with another man, the facts indicated that the wife had loaned $25,000 of her own money to the man’s business, bought him Saints tickets, talked to him on the phone extensively, visited his parents, and even gave him a “hug and kiss in the courthouse hallway.” Id. at 140. On the other hand, the husband’s alleged misconduct included leaving a woman (non-relative) a small portion of his estate in his will, going with her to the Kentucky Derby, having her ride with him on his private jet, and attending bars in public with her. Id. Despite these facts, the Mississippi Court of Appeals affirmed a circuit court’s finding that neither the husband nor the wife provided sufficient evidence of adultery to warrant a divorce under Mississippi law.

However, in Larson, the court affirmed the chancellor’s finding that a husband was entitled to divorce on grounds of adultery. In that case, the facts indicated that the wife admitted to having sexual relations with another man, traveled to Chicago with the man without telling her husband, and even used his birth date as her personal password. Larson v. Larson, 122 So. 3d 1213, 1215 (Miss. Ct. App. 2013). Likewise, in Gillespie, a husband provided evidence that his wife went on a cruise with another man and exchanged intimate letters with him that revealed some sort of sexual relationship between the two. Gillespie v. Gillespie, 106 So. 3d 869, 871-72 (Miss. App. 2013). The court there also found that the husband provided clear and convincing evidence of adultery to warrant a divorce award.

Ultimately, is some situations, proving adultery can be easier said than done; the Fore case is good example of just how tough proving adultery can be. Nonetheless, before seeking a divorce on grounds of adultery, it is a good idea to have at least an elementary understanding of how Mississippi law defines adultery and what is required to prove it. As an experienced Mississippi divorce attorney, I can further help you understand the divorce process in Mississippi and guide you through it. If you or a friend should need professional assistance in a divorce, please contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.