Everyone remembers that famous saying about not being able to define pornography, but knowing it when you see it. The moral of that saying is that pornography, like cheating can be wholly subjective. And when it comes to “sexting,” what one spouse believes to be nothing more flirtatious texting with a coworker or friend, the other spouse may view as full-blown cheating, even if physical intimacy was never involved. For an example of the moral murkiness sexting presents, all we need to do is look at the latest scandal involving a certain former NYC mayoral candidate and his front page-worthy texting scandal that has resulted in the demise of his marriage.
If sexting as cheating is subjective in everyday life, what about sexting in the legal sense: Is sexting considered adultery, which is a ground for divorce?
Here in New Jersey, there are several grounds that you can site to in your divorce complaint that describe why you believe you should be divorced. These grounds, or reasons range from irreconcilable differences, where you tell the court you and your spouse have been having problems in your marriage that cannot be fixed to extreme cruelty, where you would list incidents in your marriage where you spouse has been extremely cruel, and adultery. Today in the Garden State, most attorneys would agree that the path to least resistance and the one that costs the least, both emotionally and financially is the grounds of irreconcilable differences. You can certainly file for divorce based upon adultery, but because New Jersey is a no-fault state, the cheating spouse is not required to give up more property or pay more spousal support because they cheated. It hardly seems worth the stress and emotion of this type of divorce proceeding, especially since you are required to name the person with whom your spouse had the affair and allow them to participate in the divorce.
But, perhaps the spouse who cheated spent marital money on the affair. In that situation, it may behoove the other spouse to file based upon the grounds of adultery as the cheating spouse will most likely be required to pay back the money that was spent on the affair.
So, does sexting count as adultery under the law?
In a 2011 article found on FoxNews.com, New York attorney Jonna M. Spilbor says, “Sexting, while not technically adultery, is cheating. But she says in New York divorce proceedings cheating “hits you in the heart, more than it hits you in the wallet.” But attorney Stephen Haller, has a slightly different take saying, “there’s no specific grounds anywhere that I know of where sexting is listed as grounds for divorce.” But he does say that “text messages and sending racy pictures can be used as evidence constituting irreconcilable differences, but not necessarily adultery.”
The most recent case in New Jersey on the subject of adultery states, court finds that adultery exists “when one spouse rejects the other by entering into a personal intimate sexual relationship with any other person, irrespective of the specific sexual acts performed, the marital status, or the gender of the third party. It is the rejection of the spouse coupled with out-of-marriage intimacy that constitutes adultery” (S.B. v. S.J.B.). So, it would appear that adultery requires a physical relationship and not merely flirting, texting or sexting. While these behaviors may constitute cheating or infidelity, they do not appear to qualify as adultery in the legal sense of the term.
If you need further information about filing for divorce here in New Jersey, please contact us today to set up your initial consultation with one of our knowledgeable and experienced divorce and family law attorneys.