Cyber Sex and Divorce

Cyber Cheating: Easy to Do and Even Easier to Cover Up

Phone sex, sexting, instant messaging, chat rooms, live web cams, online dating sites, online virtual worlds, exchanging photos and live videos, not to mention Skype, Facebook, Instagram, Twitter—the list goes on. Simply put, there's no end to the options for a partner who is motivated to engage in a non-physical sexual relationship without someone else outside of marriage. Cyber cheating has rapidly grown to be a leading cause for divorce over the last decade Often, these activities start out innocently enough, but before long, the friendship becomes more flirtatious and eventually morphs into a full blown online relationship that takes an spouse's already waning attention away from his or her marriage.

While there are certain aspects of a physical affair, such as pregnancy and transmitting STDs, that aren't concerns with strictly emotional affairs, in all other aspects, both are considered equally devastating to relationships. In fact, in some ways, a strictly physical affair, especially a brief one like a one night stand, isn't nearly as painful to a jilted spouse as an ongoing relationship that, although taking place entirely via the internet or a phone, allows a partner to develop an emotional connection with another person. Just like a physical affair, an emotional one affects the way partners relate to each other and usually not for the better. Moreover, while carrying on a traditional physical extramarital relationship requires the participants to find time away from work and family for secret rendezvous, strictly online infidelity affords a cheating mate the ability to be in almost constant contact with multiple paramours, all while sitting right next to his or her unsuspecting spouse on the sofa.

Another problem with non-physical online relationships, phone sex and sexting is that there is no guarantee that the encounters will remain at a distance and that the two will never meet face to face. On the contrary, contact that starts online routinely ends up becoming in person contact.

Craftier cheaters are opting for apps like Snapchat and Cyber Dust, which cause messages to be automatically deleted just seconds after being sent. However, contrary to popular belief, Snapchats don't actually disappear, they're just hidden, which means they are accessible by court subpoena should you ever find yourself in divorce court. In answer to this problem, billionaire entrepreneur, Mark Cuban, created Cyber Dust. Like Snapchat, Cyber Dust also causes message to automatically erase. However, with Cyber Dust, the messages really do disappear and cannot be reproduced, although both apps are far from full proof since users can't control whether a screen capture is made of an image, although Cyber Dust does notify the sender if it detects that one has been made.

Courts Say Sexting and Cyber Sex are Not Adultery

When it comes to pulling the trigger on divorce, will it even matter that your spouse has been caught red handed engaging in online infidelity? For the most part, no. For one thing, all 50 states have enacted no-fault options, which allow you to get a divorce without proving that your spouse engaged in adultery or some other type of marital misconduct that caused your marriage. Instead, generally one spouse simply needs to allege that there are irreconcilable differences or that the partners have become incompatible and that there's no hope for the marriage. In 17 states, fault options have been abolished entirely and adultery will not be considered in any aspect of divorce.

In the 32 states where adultery is still a grounds for divorce, states have, either through statute or case law, expressly defined adultery as a specific sexual acts, in other states it remains technically undefined. However, regardless of how your state defines adultery, at this point, some sort of physical act, particularly some type of touching of the genitals of at least one participant, is required for an activity to amount to adultery. As far back as the 60s, when phones had stretchy cords and rotary dials, court began ruling that phone sex didn't count as adultery.

Cyber Cheating May Still Affect You Financially in Divorce Court

Not only is it well settled that physical sexual contact is required for adultery, you'd probably be surprised how little judges really care about actual adultery let alone cyber cheating and phone sex. However, while your digital deviance may not constitute sex in the eyes of family court judges for purposes of proving adultery, many states allow and even require judges to consider marital misconduct or wrongdoing when awarding spousal support or property division.

The exact definition of marital misconduct varies by state and case law, but generally includes behavior that falls short of traditional adultery. Still, in many of these states, the misconduct must have a financial component, especially when it comes to property division. The misconduct must generally impact the innocent spouse financially in order to be considered in property division. Among the most common ways for a spouse to show economic detriment include the cheating spouse spending money on gifts and other activities for the object of his affection and paying for access to paid websites such as live web cams and chat lines. A far less common example would be online infidelity that was so egregious that it caused emotional detriment to the innocent spouse that has impacted his or her ability to support himself—in other words, if an innocent spouse is so emotionally devastated that he or she is unable to work and needs therapy to recover.

However, not all courts require the innocent spouse to prove that his or her spouse's online infidelity caused actual financial detriment or resulted in the dissipation of marital funds. As a practical matter, regardless of what the law says, even the most impartial judge can fall victim to his or her own empathy, and when particularly egregious, evidence like text messages, emails and social media can and do influence spousal support awards and property division.

On a sidenote, it isn't outside the realm of possibility that evidence of cyber cheating could influence the outcome in divorce cases where child custody is in dispute. While infidelity alone doesn't mean a spouse is an unfit parent per se, the content of the communications between a cheating spouse and his or her lover could be of a nature that calls that parent's mental and emotional stability into question. Additionally, those communications could indicate to the judge that the cheating parent may be unwilling or unable to foster the love and affection the child feels toward the innocent spouse, which would certainly be a consideration in determining the best interests of a child and influence the child custody outcome.

Blurred Lines: The Future of Online Cheating and Divorce Law

Currently, divorce law requires, at a bare minimum, physical contact of a sexual nature in order to satisfy the definition of adultery. However, technology is rapidly evolving that will soon make it possible for people who are in two separate locations to physically stimulate each other. Remote sex technology, like the Mojowijo, which consists of gender-specific remote controlled sex toys, will soon be widely accessible. Other "sex tech" items that simulate the sensation of human genitalia as well as clothing and bed linens made from materials that are designed to product sexual sensations are on the horizon.

What happens then when, in addition to an innocent spouse showing the judge proof that his offending spouse had an online sexual relationship with another person, he is also able to prove that spouse used devices that allowed her to give and receive physical sexual stimulation with that person, even though they weren't actually in the same state, let alone the same room? Even using the current definition of adultery, which requires some type of sexual intercourse, it seems that the future of sex tech will meet this requirement and a spouse will be susceptible to a finding of adultery based on activities engaged in with a person he has never even been in the same room with.

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