Sexters Beware! Evidence of infidelity in the digital age

Unless you have been living under a rock the last few weeks, you have come across the Tiger Woods story. The car crash, the rumors of domestic violence, and, of course, the cheating. According to reports, Elin discovered the affair by going through Tiger's phone records. Jaimee Grubbs, one of Tiger's many mistresses, has come forward with more than 300 flirty, steamy text messages as evidence of the affair. As smartly phrased by Laura Holson of the New York Times, text messages are the new digital lipstick on the collar.

Tiger is not the only person of notoriety to be caught by a text message. Detroit's former major, Kwame Kilpatrick, went to jail after lying about an affair with an aide and then having sexually explicit test messages surface. Senator John Ensign was caught having an affair when his mistresses husband, who was also his aide, found text messages on Senator Ensign's phone. And the list goes on and  on.

Otherwise intelligent men and women seem to believe that the digital evidence of their trysts disappear into the ether with their texts, never to be seen again. That is, until your spouse or her attorney dig it up. Daniel Clement, of the New York Divorce Report writes:

In the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

So, especially in the State of New Hampshire where divorcing spouses may plead fault grounds, sexters beware! Evidence of infidelity in the digital age is easy to find, and divorce attorneys know where to look. The evidence will most likely come to light before or during your divorce. If you do not want to be caught, refrain from the affair.

Same-sex marriage and the future of fault grounds in New Hampshire

With the same-sex marriage bill about to come to Governor Lynch’s desk, it is an appropriate time to examine the future of fault grounds in New Hampshire. Currently, New Hampshire has both fault and no-fault grounds for divorce. Only about 1% of divorces in New Hampshire are granted on the basis of fault. Of the nine fault grounds, adultery is the most common.

Adultery in New Hampshire has a very narrow definition. For the purposes of the fault ground statute, under the Blanchflower decision,

“the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that person of the same gender cannot, by definition, engage in the one act that constitutes adultery under the state.”

Furthermore, the court rejected the notion that it should expand the definition of adultery to include sexual acts other than intercourse between a man and a woman because doing so would revise the established definition of adultery beyond recognition, and “it is not the function of the judiciary to provide for present needs by an extension of past legislation.”

I was before a marital master on a temporary hearing the other day, and when the issue of fault grounds came up, he pointed out that if same-sex marriage becomes law, there will be married same-sex couples who, by virtue of their sexuality, cannot commit adultery according to the law (unless they were to cheat with an opposite-sex partner). It is an interesting predicament, and something that the legislature will need to address. The legislature will need to either revise the definition of adultery to include an expanded array of sexual acts between same-sex or opposite-sex couples, or abolish fault grounds all together. Many family law attorneys would argue for the later, pointing out that fault ground divorces cost more, take longer and interfere with parents moving forward with a good co-parenting relationship. Either way, it is time for the legislature to take action on the issue.

What are fault grounds?

New Hampshire is a state that recognizes both fault and no-fault grounds for divorce. The no-fault grounds allege that "irreconcilable differences which have caused the irremediable breakdown of the marriage." In other words, the parties just cannot get along and there is no hope of fixing the marriage.

New Hampshire recognizes the following fault grounds:

  • Impotency of either party. 
  • Adultery of either party. 
  • Extreme cruelty of either party to the other. 
  • Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction. 
  • When either party has so treated the other as seriously to injure health or endanger reason. 
  • When either party has been absent two years together, and has not been heard of. 
  • When either party is an habitual drunkard, and has been such for 2 years together. 
  • When either party has joined any religious sect or society which professes to believe the relation of husband and wife unlawful, and has refused to cohabit with the other for 6 months together. 
  • When either party, without sufficient cause, and without the consent of the other, has abandoned and refused, for 2 years together, to cohabit with the other.

In order to prevail in the divorce on fault grounds, the party alleging the fault must be an "innocent spouse." For example, a party cannot allege that the breakdown of the marriage was caused by the other parties adultery, when that party contributed to the breakdown by being an habitual drunk. Even if a party does not prove fault grounds, they are still entitled to a divorce based upon irreconcilable differences.