Is Sexting Considered Adultery?
I get a lot of calls where the person tells me that they want to pursue a divorce based on adultery. I ask them what evidence they have of the adultery? They tell me they have text messages between their spouse and some other person.
Text messages, emails, or written letters are not adultery by themselves! Even if they are full of declarations of undying love and devotion or lustful desires.
Virginia Law
Virginia Code Section 20-91 says the courts can grant a divorce for “[a]dultery; or for sodomy or buggery committed outside the marriage….”
Adultery is defined in the criminal part of the Code in Section 18.2-365. It says: “[a]ny person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.”
Sodomy refers to oral – genital sex. Correspondingly, buggery refers to genital – anal sex.
Even sexting where people get themselves excited by describing imagined sex acts they would like to engage in, that does not meet the definition of adultery. The term “sexual intercourse” in the context of the Virginia law is limited to acts that actually occur in real life.
Description of Sexual Acts Performed
But if the text messages refer to the specific sexual acts performed at some time in the past, they can be evidence of adultery. For example, I had a case where the unfaithful spouse helpfully sent an email to their paramour. They said they had a great time but the body part involved was sore.
