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This article is going to take a break from the norm, where I find case law or statutory law and try to dissect and explain it in a way that can be digested more easily. This article will not try to provide answers, but will try to leave you with a question. A question that I want you to try and answer in your own time after completing this article. 

LET'S IMAGINE THIS . . . 

So . . . what is the question? Well, let's introduce the question with a hypothetical. Lets say you come home one night from a long day at work and notice that the spouse's cell phone is siting on the counter in the kitchen. As you are passing by, you glance and notice that text message notices are popping up on the screen. Without hesitation you pick up your spouse's phone (I mean you are married right) and low and behold, it is a line of text messages where someone is talking "dirty" with your spouse. Maybe they have even fired over a few explicit photographs as well . . . Oh my!!! Surely what will follow will be some type of confrontation with your spouse, because at the least this is an issue of loyalty within the marriage. However, the question that I have for you to ponder is this . . . has your spouse committed adultery?

THE EMOTIONAL SIDE OF SEXTING

Polls and surveys from the last few years have wielded the following results. A majority of people, regardless of gender, do consider "sexting" to be a form of adultery and / or marital infidelity. There is a little disparity in how pervasive this view is between the genders. Nearly three fourths, or 75%, of all women feel that "sexting" does constitute adultery or "cheating." In comparison, about half of all men, or roughly 50%, feel that "sexting" is a form of adultery. So, the court of public opinion would seem to support the notion that sexting is considered a form of cheating on a spouse. The heart seems to tell people that something is afoul when you catch your spouse or significant other "sexting," but what does the brain and the law say?

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LEGAL STANDARD FOR ADULTERY IN SOUTH CAROLINA

Remember from previous articles that in South Carolina, we do not need the grainy hotel video that shows your spouse in the act. In order to prove adultery in South Carolina, one must show two specific elements:

• That your spouse has the motive to commit adultery; and

• That your spouse has the opportunity to commit adultery

Remember, that the legal standard in South Carolina for adultery can be satisfied without any act of sexual intercourse ever taking place. Adultery in South Carolina can be proven in Family Court merely by presenting evidence of words and deeds that show a willingness to seek romantic intimacy and presenting evidence that opportunities existed for these words and deeds to be acted upon (regardless of if they actually ever were). So which side of the legal standard does "sexting" fall?

ONE ATTORNEY'S HUMBLE OPINION . . . 

As the case law develops and more cases certainly enter the Family Court system where "sexting" and social media apps are used as a basis to support fault ground divorces, where do I anticipate this area of the law heading? 

First of all, I feel that "sexting" definitely satisfies the first prong of the definition of Adultery in South Carolina. I mean if it walks like a duck, swims like a duck , and quacks like a duck . . . well you see where this is going. There is no better possible evidence of a motive to commit adultery than seeing your spouse sending text with romantic overtures, or "dirty talk," or explicit photos to a potential paramour. 

Where "sexting" fits into the second prong of the definition of Adultery in South Carolina is where the gray area lies and where case law in South Carolina will eventually have to fill in the gaps. I have talked casually about this issue with several attorneys in this practice area who I know and respect and there seems to be a consensus on where the law might take us. As far as "sexting" is concerned, does it in itself provide an "opportunity" to commit Adultery? I am personally aware of one set of circumstances where someone is seeking a divorce based upon the ground of Adultery where the spouse was caught "sexting" with someone who lives on the West Coast whom he has never met . . . Adultery? Does this analysis change if you catch your spouse "sexting" with someone who lives not in another state, but just on the other side of town? What if you see that your spouse had downloaded Tinder or Grindr onto their phone . . . Adultery?

Though the law in this specific area at this point in time is sparse, I think that when our Family Courts in South Carolina have vetted this issue, you will see that cases where "sexting" is successfully used to prove adulterous acts will involve cases where the "sexters" (I'm sorry I couldn't resist) had some proximity to each other geographically or had some other means of at least having a mutual physical presence, therefore satisfying the opportunity element of the definition of Adultery. I personally feel that cases of "sexting" that involve remote contacts that are limited to the electronic realm will escape being pulled under the umbrella of Adultery. 

However, they will not escape the wrath of a scorned spouse!!!

THE MCMILLIAN LAW FIRM - HANDLING FAMILY LAW AND DIVORCE MATTERS IN CHARLESTON, SC AND SUMMERVILLE, SC

If the time has come and you need to pursue a divorce, please seek the legal counsel you need to protect your rights. Representing yourself in Family Court without the assistance of a lawyer can be catastrophic emotionally and financially. If you are living in Charleston, Mt. Pleasant, Goose Creek, Summerville, Walterboro, Beaufort, St. George, Moncks Corner, Ridgeville . . . call The McMillian Law Firm now before it is too late and let me help!!