Proving Adultery

The Mississippi Supreme Court has said that to prove adultery, a plaintiff-spouse must show by clear and convincing evidence that the other spouse exhibited both an (1) adulterous inclination and a (2) reasonable opportunity to satisfy that inclination. Larson v. Larson, 122 So. 3d 1213, 1215 (Miss. Ct. App. 2013). An “adulterous inclination” requires proof of either the defendant’s infatuation with a particular person or general adulterous propensity. Id. More so, adultery may be proven by either direct evidence or, given the inherently secretive nature of adulterous conduct, by circumstantial evidence. Id. But, “[w]here the plaintiff relies on circumstantial evidence as proof for his allegations, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to conclusion of guilt.” Dillon v. Dillon, 498 So. 2d 328, 330 (Miss. 1986). So, the plaintiff-spouse seeking a divorce based on circumstantial evidence of the other spouse’s adulterous misconduct retains the burden of proof at trial; instead of the burden shifting to the defendant-spouse to prove otherwise.

In Fore, both the husband and wife filed for divorce, accusing each other of committing adultery. Fore v. Fore, 109 So. 3d 137, 138 (Miss. Ct. App. 2013). Regarding the wife’s alleged adulterous conduct with another man, the facts indicated that the wife had loaned $25,000 of her own money to the man’s business, bought him Saints tickets, talked to him on the phone extensively, visited his parents, and even gave him a “hug and kiss in the courthouse hallway.” Id. at 140. On the other hand, the husband’s alleged misconduct included leaving a woman (non-relative) a small portion of his estate in his will, going with her to the Kentucky Derby, having her ride with him on his private jet, and attending bars in public with her. Id. Despite these facts, the Mississippi Court of Appeals affirmed a circuit court’s finding that neither the husband nor the wife provided sufficient evidence of adultery to warrant a divorce under Mississippi law.

This case shows that beliefs about adultery is not enough.