Adultery in Mississippi: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in Mississippi.

It's not really news to anyone that a common cause of divorce is adultery, but that doesn't make it any less painful when it happens to you. If your marriage is ending because of an affair, you're no doubt caught up in a whirlwind of painful emotions. But you can stop twisting in the wind and take control of the situation by learning some basic information about your legal rights and responsibilities in the upcoming divorce.

This article will explain the possible impact of adultery on a divorce and alimony award in Mississippi. If you have questions after you read this article, you should speak with an experienced family law attorney for advice.

What Role Does Adultery Play in a Mississippi Divorce?

The modern trend in American law is toward no-fault divorce. No-fault divorce means that a court will issue a divorce order if the marriage is so broken that it can't be saved. No one has to testify or provide evidence about who's to blame for the marital problems, and no one's reputation is tarnished.

Fault-based divorces, on the other hand, are part of an older era in American family law. In a fault-based divorce, the judge grants a divorce because one spouse committed marital misconduct against the other spouse. Examples of marital misconduct, or fault, traditionally include chemical dependency, abuse, or abandonment.

Mississippi allows both no-fault and fault-based divorce. The court will grant a no-fault divorce if one or both spouses believe the marriage can't be repaired because of irreconcilable differences between the spouses. Otherwise, if the initiating spouse opts for a fault-based divorce, there are twelve grounds (meaning, legal reasons) available:

  • impotency
  • adultery
  • criminal conviction and subsequent sentencing to imprisonment in a penitentiary
  • intentional desertion for at least one year
  • habitual drunkenness
  • habitual use of narcotics
  • habitual cruel and inhuman treatment
  • having a mental illness or intellectual disability that wasn't revealed at the time of marriage
  • the wife's pregnancy by another man at the time of marriage, if the pregnancy was hidden from the husband
  • the spouses are related to each other, and
  • incurable mental illness.

Adultery is generally defined as occurring when a married person has sexual relations with someone other than a spouse. If a judge grants a fault-based divorce based on adultery, the official court order will say that there was adultery in the marriage. This can have consequences in other important aspects of the divorce, such as child custody or alimony.

Before deciding whether to obtain a no-fault divorce or a divorce based on adultery, you should talk over your options with a family lawyer and develop a legal strategy for the divorce.

Overview of Alimony in Mississippi

Alimony, which is also known in Mississippi as “spousal support,” is the payment of money from one spouse to another, so that both spouses can maintain a roughly equal standard of living after the divorce is final. The purpose of alimony is to distribute marital funds in such a way that neither spouse is impoverished during the divorce proceedings or after the divorce.

Alimony can be temporary or, less frequently, permanent. Mississippi’s judges have the authority to order alimony in three basic forms:

  • Lump sum alimony is a one-time alimony payment which functions as a settlement of alimony claims. Lump sum alimony can't be changed in the future.
  • Periodic alimony is alimony that is paid on a regularly scheduled basis, like bi-weekly or monthly. Judges are more likely to award this kind of alimony when a long-term marriage ends in divorce. Periodic alimony can be modified in the future. The paying spouse must continue to pay alimony to the receiving spouse until one of the two dies or the receiving spouse remarries.
  • Rehabilitative alimony is a kind of temporary alimony that judges can award for a limited period of time. The purpose is to help the receiving spouse obtain the necessary education and training to get a job and become economically self-sufficient.

Click here for more information on alimony in Mississippi.

How Does Adultery Affect Alimony Awards in Mississippi?

Judges in Mississippi have quite a bit of latitude in making decisions about alimony. They have to consider all the evidence and then issue an order that takes into account the circumstances of the spouses and the nature of the case. The order has to be equitable and just (meaning, fair and reasonable), and it should be based on the following factors:

  • the income and expenses of the spouses
  • the health and earning capacities of the spouses
  • the needs of each spouse
  • the debts and assets of each spouse
  • the length of the marriage
  • the presence or absence of minor children in the home, which may require that one or both spouses pay for or personally provide child care
  • the age of the spouses
  • the standard of living the spouses enjoyed both during the marriage and at the time of the court's alimony decision
  • the tax consequences of the alimony order
  • either spouse's fault or misconduct
  • wasteful dissipation of assets (meaning, spending money without a good reason) by either spouse, and
  • any other factor that the judge thinks is relevant.

The purpose of alimony is not to punish a spouse who has been unfaithful, and it can't be used as a sanction for bad behavior, but the court must at least consider the facts about any marital misconduct or fault that has occurred, including adultery. The only exception is if the court is awarding lump sum alimony, in which case fault can't be considered. Fault is only a factor in periodic alimony cases.

Just because adultery has occurred, however, doesn't mean that the judge has to rule against the unfaithful spouse. Even if there has been adultery, the judge is obligated to issue an alimony decision that's fair to both spouses.

Marital fault is just one of twelve factors, and the court must put it into perspective when deciding whether to award alimony, and if so, in what amount and for what duration. For example, if a spouse had an affair and depleted the marital savings account to buy lavish gifts for a lover, the court is likely to weigh the adultery more heavily because of its impact on the spouses' finances.

Resources

The State of Mississippi Judiciary

Legal assistance through Mississippi Center for Legal Services or the Mississippi Legal Services

The complete Mississippi Code

Miss. Code § 93-5-1 (2013)

Miss. Code § 93-5-2 (2013)

Miss. Code § 93-5-23 (2013)

Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993)

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