Will Sexting Penalize Me in a Divorce Case?

With the mobile revolution, it’s become easier for people in relationships to communicate with each other—including in racy, sexy ways. The term “sexting” includes sexual communication expressed in text messages, mobile photos, and even mobile videos. However, sexting often becomes a worry when people are going through a divorce.

So, does the fact that you sexted with another person during your marriage impact how a judge will assess your divorce case? Let’s review some facts.

1. Sexting is usually just an extension of infidelity. Infidelity is grounds for divorce, and may even be illegal because, believe it or not, adultery in Georgia is still a misdemeanor. Of course, if you’re cheating on your spouse or having an affair, it’s likely that your marriage is not in a good place. Sexting may provide more information about your infidelity and increase the chance of your spouse finding out. But sexting is no different than facts or evidence about a typical affair or sexual indiscretions.
2. No-fault divorces exist to prevent needing to find fault as evidence. If you’re sexting and your spouse finds out, it may trigger a divorce. It is not necessary that your spouse try to prove adultery to get a divorce. It would be up to your spouse to choose whether or not they want to proceed with the divorce demanding the divorce be granted on fault grounds of adultery, irreconcilable differences or any other grounds for a divorce.
3. Your phone communications are private unless required by a court of law. Unless you’re going through a criminal proceeding in which your phone data is required by the court, the content of your sexting will remain private. A divorce proceeding is not a criminal proceeding.
4. At most, sexting might be used as an additional evidence to establish patterns of much deeper, relevant problems. Sexting in and of itself may not damage you. But it could be used as supporting evidence as a part of a larger pattern. For example, in extreme cases let’s say you cheated with 10 people, hid the fact for many years, and neglected your kids in the process. The fact of neglect might harm your chances at child custody. The reason for not getting custody isn’t sexting. Your sexting is simply part of a wider, ingrained pattern of neglecting the raising and care of your kids in order to conduct secretive affairs over a long period. But if you generally raised your kids well and happened to sext as part of one affair that led to your spouse insisting on divorce, then that sexting is probably not compelling enough to harm your overall chanced of child custody if you were a good parent to your children.

Any information may be used for you or against you, but the bottom line is that sexting in and of itself is not a deal breaker in a no-fault divorce culture. Unless the sexting is unnaturally excessive in some way that bleeds into areas like harassment or illegal activity, then your spouse cannot bring up sexting and expect it to be a major factor that will sway the judge in a divorce case.