Is sexting grounds for adultery?

“Sexting” and other forms of electronically recorded erotic behavior sometimes is alleged by a person against his or her spouse in a divorce case as evidence of adultery. This kind of evidence, as hurtful and offensive as it is, may not rise to the level required to prove adultery.

Proof of adultery in South Carolina requires the inclination of a person to engage in a sexual relationship with another person who is not their spouse, and the opportunity to do so.  Sexting is almost always proof of inclination. However, if there is no opportunity for the couple to engage in a sexual act, there can be no finding of adultery. 

It is a free country, after all. If two people want to share lewd photos of each other, that is their prerogative. It may lead to the end of their marriage(s) but, without more, it will not be evidence of adultery, just weird behavior.  

Our courts are not going to concern themselves with whether actual sex occurred; if a party is proven to be inclined to have an extramarital affair, and the opportunity to engage in sex exists and is taken, the court is going to assume it happened.  If a couple is shown to be in the habit of sharing erotic images with each other and contemporaneously have an opportunity to have a sexual encounter, it very likely will cause a court to find adultery.  

When you stop to think about it, allegations of adultery are really the least of the problems people who engage in this behavior are likely to encounter!

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