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.
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:
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.
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:
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 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.
The complete Mississippi Code
Miss. Code § 93-5-1 (2013)
Miss. Code § 93-5-2 (2013)
Miss. Code § 93-5-23 (2013)