It's not really news to anyone that adultery is a common cause of divorce in Mississippi, 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 affect of adultery on a divorce and alimony awards in Mississippi. If you have questions after reading this article, you should speak with an experienced family law attorney for additional guidance and legal advice.
The modern trend in American law is toward no-fault divorce. Mississippi allows both no-fault and fault-based divorce. No-fault divorce means that a court will issue a divorce order if the marriage is so broken that reconciliation is impossible. No one has to testify or provide evidence about who's to blame for the marital problems, and in turn, the divorce process won't tarnish either spouse's reputation.
The court will grant a no-fault divorce if one or both spouses believe they can't repair the marriage because of their irreconcilable differences. (Miss. Code Ann. § 93-5-2.)
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 adultery, abuse, addiction, or abandonment.
Otherwise, if the initiating spouse opts for a fault-based divorce, there are twelve grounds (meaning, legal reasons) available:
The law generally defines adultery 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 finding 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 sound legal strategy for your case.
Alimony, which Mississippi courts also call "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. (Miss. Code Ann. § 93-5-23.) 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 judges should base it on the following factors:
Judges don't award alimony in order to punish an unfaithful spouse, and courts can't use it as a sanction for bad behavior. However, the judge 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 the judge can't consider adultery. Fault is only a factor in periodic alimony cases.
However, just because adultery has occurred doesn't mean that the judge has to rule against the unfaithful spouse. Even if there has been adultery, the judge must 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, suppose a spouse had an affair and depleted the marital savings account to buy lavish gifts for a lover. In that case, the court is likely to weigh adultery more heavily because of its impact on the spouses' finances.
Adultery will not impact a child support order. Courts determine child support by evaluating the number of children and the noncustodial parent's income. For example, if the parents have one child together, the court will determine the noncustodial parent's adjusted gross income and will award 14% of that income to the custodial parent for child support. Mississippi law presumes that the formula is accurate, so judges cannot measure marital fault when calculating child support. (Miss. Code Ann. § 43-19-101.)
In Mississippi, the courts have ruled that judges cannot use marital fault in custody decisions. Instead, the court must evaluate the Albright factors, which include the child's age, relationship with each parent, home and school record, and preference. Additionally, the court must evaluate each parent's ability to care for the child, provide food and shelter, physical and mental health, and moral fitness. Although it may seem that an unfaithful spouse is low in moral character, that, in itself, is not enough to convince a court to deny custody.
On the other hand, if a parent engages in dangerous behavior or exposes the child to an individual that jeopardizes the child's wellbeing, it may impact a judge's custody decision. For example, if a parent is dating a registered sex offender and the parent forces the child to visit or live with the offender, the court may deny or limit custody or parenting time. (Albright v. Albright, 437 So. 2d 1003.)
The State of Mississippi Judiciary.
Legal assistance through Mississippi Center for Legal Services or the Mississippi Legal Services.
The complete Mississippi Code.