Last week the New York Times ran a blog titled When Sex Leaves the Marriage. Practice family law for over fifteen years and you’ll witness first-hand how most marriages that fail break down over children, money or sex. Thus, I spend a great deal of time thinking about how sex should impact divorce issues.
In South Carolina the family court will impose a heavy penalty on a spouse who commits adultery. In most cases, adultery is an absolute bar to alimony. S.C. Code Ann § 20-3-130. A supporting spouse who commits adultery can expect that fact to greatly impact the size and duration of any alimony award. Adultery is often a 5 to 10% factor in property division. See Doe v. Doe, 370 S.C. 206, 634 S.E.2d 51 (Ct.App.2006). Doe notes that fault in a marital breakup is not supposed to be a factor in the award of attorneys fees but this prohibition is frequently ignored. Further, while adultery is a proper factor for consideration in child custody, it is supposed to be limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child. Frequently the family courts make adultery a much bigger factor in child custody. See Fighting the Morality Police in Family Court Custody Cases.
Yet while the South Carolina courts make a great to-do about adultery, they do not seem to be able to figure out what to do about the sexless marriage. In my recent updating of this web site, I obtained old unpublished decisions from appeals I had handled. I had forgotten that the 1999 decision in Walters v. Walters noted that it was appropriate to deny Ms. Walters alimony, in part, because she had denied my client “marital intimacies during the last few years of marriage.” I am unaware of any reported cases in which the lack of “marital intimacies” has been discussed as a factor in the marital breakup, let alone acknowledged as a legitimate factor in deciding alimony. Such a reported case would have great impact on marital litigation in South Carolina.
I have a basic thesis that I would love to see some attorney test in the appropriate case: any behavior that would excuse no sex should also excuse adultery. Spouses have the right to demand monogamy only if they don’t demand celibacy.
This culture made a mistake when it decided to allow spouses veto power over the other spouse’s sexual pleasure. Typically, this allows wives to demand and dictate the terms of what is very important to most men (and sometimes allows husbands to demand and dictate the terms of what is very important to many women). While we expect spouses to remain monogamous, and punish the cheating spouse when that spouse does not remain monogamous, we fail to punish spouses who lose interest in sex but demand celibacy from their spouse. This is because our fall back position when monogamy is not working in a marriage is celibacy, not sex outside of marriage. However, few folks would get married if they expected marriage would mean no sex, infrequent sex, or unenthusiastic sex. It is the height of hypocrisy to act shocked when such spouses cheat. Perhaps if we were more shocked by the spouse who loses interest in sex but demands monogamy, our culture would better reflect human nature and lead to more human happiness.
Finally, we do a disservice on looking down on the “French” way of looking at marriage and adultery. Although I do not believe in adultery personally (I am incapable of even flirting with other women), for certain people sex outside of marriage can make a marriage workable. Spouses who are excellent homemakers, child raisers or financial providers may not be ideal lovers. Our culture makes too little of the importance of Eros to adult happiness. Perhaps a culture that accepts that erotic pleasure and stable family formation do not have to be congruent would be a culture more in line with human nature and more attuned to human happiness.