Sexting, the act of sending sexually explicit messages or images electronically, has become increasingly common in recent years. With the rise of sexting, a debate has emerged about whether this behavior constitutes adultery from a legal perspective, especially in the context of divorce proceedings.
What is Sexting?
Sexting refers to the sending or receiving of sexually suggestive text messages, nude or semi-nude photos, or explicit videos via cell phones or other electronic devices. While sexting often occurs between romantic partners or spouses, it may also take place between casual dating partners or even total strangers who connect online.
Some key facts about sexting:
- Sexting is most common among teens and young adults, but people of all ages engage in it.
- Sexting can occur via text message, messaging apps, email, or social media.
- Explicit images sent via sexting are often considered child pornography if the sender or recipient is under 18.
- Reasons people sext include flirting, initiating romantic/sexual relationships, joking around, and sharing intimate experiences.
While sexting is usually voluntary between partners, sexts can also be shared without consent, which constitutes revenge porn in many jurisdictions.
Is Sexting Considered Cheating?
Whether sexting should be defined as cheating on a significant other is debatable. Some argue that the act of exchanging intimate messages and images with someone other than your partner violates the bonds of trust and commitment in a relationship. Sharing nudity and engaging sexually with another person, even virtually, can be construed as emotional if not physical adultery.
However, others view sexting as a modern form of harmless flirtation and foreplay. Proponents argue that a partner sexting someone else is not necessarily cheating if both individuals derive enjoyment from it and no physical intimacy occurs. Some couples even sext mutually with other partners without considering it infidelity.
Much depends on the boundaries and agreements established in each unique relationship. Many consider sexting with someone else cheating only if it violates the rules of that partnership.
Is Sexting Grounds for Divorce?
In many states, adultery can be cited as grounds for divorce. However, whether sexting meets the legal criteria for adultery varies between jurisdictions. Some key considerations include:
- Physical Contact: Most legal definitions of adultery require sexual intercourse between a married person and someone other than their spouse. However, some states specify that adultery does not necessarily require physical contact.
- Emotional Affairs: Some states allow “emotional adultery” as grounds for divorce. Sexting could potentially fall under this category by constituting an intimate relationship outside of marriage.
- Intent: Was the intent behind the sexting to arouse sexual interest or gratify desire for an outside party? If so, it is more likely to meet adultery criteria.
- Content: Most jurisdictions require more than flirtatious messages to qualify as adulterous. Nudity or explicit descriptions of sexual acts make it more likely sexts will meet adultery standards.
State-by-State Differences
Currently, only a handful of states, such as Idaho, Mississippi, Utah and South Dakota, have laws expressly prohibiting sexting between married persons and someone other than their spouse. In most places, whether sexting constitutes adultery depends on how broadly courts interpret adultery laws.
For example, in North Carolina and Oklahoma, adultery involves “lewd behavior” and “indecent conduct” beyond just sexual intercourse. This gives grounds for sexting to potentially be classified as adultery.
However, states like Pennsylvania, South Carolina and Virginia specify adultery as extramarital intercourse, which seems to exclude sexting by itself. But if sexts directly lead to physical cheating, they may bolster adultery claims in these states.
When Sexting Becomes Adultery
While nuances exist between states, some general guidelines indicate when sexting is most likely to be considered adulterous behavior:
- If sexting includes sexually graphic content (such as nudity, physical descriptions, intimate video chats)
- If sexting includes propositioning sexual activity or romantic intimacy
- If sexting occurs frequently and develops into an ongoing relationship
- If the partner engaging in sexting hides the behavior from their spouse
- If the sexting is discovered to have preceded or led to actual physical intimacy
Basically, the more intimate, persistent, deceptive and explicit the sexting, the more it demonstrates adulterous intent and action. Isolated, occasional sexting incidents are less likely to reach adultery thresholds from a legal perspective.
When Sexting is Unlikely to Reach Adultery
On the other hand, sexting behavior that is more likely to be deemed harmless, playful, or not adulterous includes:
- Infrequent, one-off sexts
- Mildly flirtatious messages without graphic sexual content
- Sexts to an anonymous stranger without ongoing emotional involvement
- Sexts that are disclosed to and accepted (within limits) by the partner
Most courts will not take these types of sexting interactions as seriously in determining adultery for divorce proceedings.
Proving Adultery Through Sexting
As with traditional adultery, the burden of proof lies with the spouse alleging that sexting constitutes infidelity. Possible evidence includes:
- Screenshots of explicit messages, images or videos
- Records of text/data usage showing frequent sexting activity
- Eyewitness testimony confirming inappropriate behavior
- Love letters, gifts or other indications of an affair
- Discovery of separate cell phones or accounts used to conceal sexting
Many states also allow using circumstantial evidence to prove adultery. For example, unexplained absences, hiding financial expenditures, changes in habits and evasiveness may demonstrate adulterous sexting.
Defending Against Allegations of Sexting as Adultery
A partner accused of sexting as adultery in divorce can raise several defenses including:
- Challenging whether sufficient “intent” or sexual gratification occurred
- Claiming sexts have been fabricated or altered
- Asserting sexting does not meet the local adultery law definitions
- Proving their partner consented to or was aware of the sexting behavior
- Demonstrating the marriage was already irreconcilable before the sexting
In some states, being separated from a spouse can also be grounds for arguing sexting should not be penalized as adultery. However, legal definitions of separation and abandonment vary between jurisdictions.
Consequences of Adulterous Sexting in Divorce
Possible consequences if sexting is proved to be adulterous behavior in a marriage include:
- Using it as “fault grounds” for divorce instead of no-fault reasons like irreconcilable differences
- Affecting decisions about alimony, with a judge reducing or denying payments to an adulterous spouse
- Impacting division of marital property and assets
- Influencing child custody, visitation rights and parenting plans
- Leading to criminal conversation or alienation of affection lawsuits in states that allow these civil actions against affair partners
However, even if sexting constitutes adultery, the majority of states impose some form of “no-fault divorce” where marital misconduct like infidelity is not supposed to impact settlement terms. Nonetheless, adultery can still indirectly affect divorce outcomes.
Sexting in No-Fault Divorce States
Currently, all states except Mississippi, South Dakota and Tennessee offer some type of no-fault divorce option without requiring proof of fault or marital misconduct. In these jurisdictions, couples can get divorced over general “irreconcilable differences” even if one spouse committed adultery or sexting.
However, sexting and adultery can still sometimes influence divorce settlements in no-fault states. For example, judges may award a larger share of marital property to the spouse who did NOT commit adultery. But the impact is more indirect than in fault divorce states.
No-Fault Divorce States Where Adultery Still Matters
Some notable no-fault states where adultery may play a limited role in divorce outcomes include:
- Texas – Cheating spouse may receive less alimony
- Georgia – Adultery can impact alimony and division of property
- North Carolina – Judges can consider adultery in allocating marital assets
- Florida – Adulterous spouses may get reduced share of assets and alimony
Again, the influence of adultery is modest in these states compared to fault divorce jurisdictions. But it can still tilt negotiations and settlements if credibly proven.
When is Sexting a Crime?
Beyond divorce implications, sexting can sometimes lead to criminal charges as well. Potential crimes include:
- Obscenity – Sexting content may violate decency and obscenity laws, especially if minors are involved.
- Solicitation – Propositioning sexual contact through sexts can constitute criminal solicitation.
- Stalking – Unwanted, threatening sexts may cross into stalking or harassment crimes.
- Revenge Porn – Sharing private sexts without consent is illegal in many jurisdictions.
However, for criminal charges to apply, sexting generally has to involve aggravating circumstances like stalking, lack of consent or underage participation.
When Consenting Adults Sext
Most laws allow consenting adults to privately exchange intimate sexts if the content remains confidential and no other crimes are committed in the process. While taboo, two unmarried adults sexting is typically not illegal absent other factors.
However, participants often have civil liability if private sexts are shared without permission. And workplace sexting can lead to sexual harassment charges, even between consenting coworkers.
Sexting between Minors
Sexting among teens and those under 18 raises additional legal issues. While often consensual, nude or explicit sexts can legally constitute child pornography. Requirements like age verification also make sexual communication with minors illegal for adults in many cases.
However, some states have created exemptions to lessen underage sexting penalties for first-time, non-malicious offenses. Teens face lighter consequences for mutual sexting versus nonconsensual sharing.
Harassment, Revenge Porn and Sexting
Two areas where sexting raises particular legal concerns involve harassment and revenge porn.
Even without adultery implications, someone sending unwanted, threatening or obscene sexts can face civil and criminal harassment charges. The same is true for sharing intimate sexts without consent as revenge porn, which violates privacy laws.
These issues make it critical to establish consent with any sexting partners and maintain confidentiality of any images or videos exchanged.
When Does Workplace Sexting Become Illegal?
Another environment where sexting gets legally risky is between coworkers. Many companies prohibit workers from using employer communication systems for sexual communications.
Additionally, managers and supervisors face liability risks for sexting with subordinates due to power dynamics. Even consensual sexts between coworkers can turn into sexual harassment complaints down the road.
Bottom line – sext cautiously and preferably not at all with workplace colleagues to avoid potential harassment issues or code of conduct violations.
Best Practices for Legal Sexting
Some tips to keep sexting lawful include:
- Obtain clear consent from sexting partners before exchanging messages/images
- Confirm any participants are of legal age (18+)
- Avoid excessive workplace sexting, especially between managers and employees
- Do not make any threats or engage in harassment via sexts
- Keep sexts private and confidential between participants
- Delete sext content after use and avoid long-term storage
- Have open discussions between romantic partners about boundaries
Following common sense sexting etiquette makes it less likely to cause legal issues down the road.
Sexting Safely Within Marriage
Married couples who sext should also take precautions like:
- Agreeing sexting is acceptable within certain boundaries
- Deleting messages once finished sexting
- Not sharing any nude images without explicit consent
- Keeping sexts strictly between spouses
- Avoiding flirtatious sexting with others outside the marriage
As with any intimate behavior between partners, open communication about expectations and limits is key to prevent hurt feelings and relationship damage.
Can Divorce Settlements Restrict Sexting?
Some divorcing spouses attempt to include clauses in their divorce agreements prohibiting sexting or use of explicit dating apps. Post-divorce sexting bans are controversial.
While courts want settlement contracts to be fully informed and consensual, they are also reluctant to restrict the dating lives and privacy of divorced adults. Sweeping sexting bans in divorce decrees face obstacles.
However, narrowly targeted restrictions may be enforced, like:
- Prohibiting sexting or explicit apps during child custody time
- Requiring sexts remain private to shield children
- Restricting harassing or unwanted sexts/contact between ex-spouses
Bans with legitimate purposes beyond limiting legal behavior may be upheld. But courts disfavor broad sexting prohibitions that infringe on individual freedoms.
Consult an Attorney about Sexting and Divorce
Ultimately, whether sexting constitutes adultery or impacts divorce depends heavily on your jurisdiction and situation specifics. Consult an experienced local family law attorney if you have concerns about how sexting may affect your divorce case or settlement.
An attorney can advise you on state laws, gather evidence, and represent your interests in negotiations and court if sexting becomes a disputed issue. With legal guidance, you can make informed choices to navigate this issue during your divorce.
Conclusion
Sexting is a relatively modern phenomenon that the legal system is still struggling to address within ancient adultery and divorce frameworks. The answer to whether sexting amounts to adultery varies significantly across the U.S. based on local laws and case details.
In states with fault-based divorce, adulterous sexting carries greater risks of impacting property division, support awards and custody. Even in no-fault jurisdictions, proven sexting and adultery can indirectly affect some divorce outcomes.
Beyond divorce, sexting raises legal issues around harassment, consent, minors, workplace relations and privacy. But among consenting adults who keep sexts confidential, the behavior is generally lawful, if taboo.
Anyone confronting questions of sexting as adultery in their own divorce should seek guidance from a legal professional. With an attorney’s help, you can make smart decisions to address sexting evidence and protect your interests in divorce negotiations and court.