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Perhaps he has a 2,000 mile long penis?[1]

A question I am frequently and increasingly being asked by my colleagues is whether modern uses of technology to engage in sexual banter can constitute adultery as a ground for divorce in South Carolina.  Sexting, instant messaging, emailing, online role playing games and constant or lengthy phone calls (often assumed to be “phone sex”) have all been cited as evidence of adultery.  Combined with evidence of opportunity to commit an act of physical intimacy I certainly see their relevance.

However these questioners are going a step further and wondering whether such sexual banter, standing alone, constitutes adultery.  Again I certainly understand how these acts can contribute to the breakdown of a marriage, which itself is relevant on issues of alimony, property division and (sometimes) child custody.[2]  But while the South Carolina appellate courts have been deliberately circumspect about what physical intimacies are necessary to constitute adultery they have yet to even entertain a finding of adultery absent some evidence of physical intimacy.

Thus, when I have a situation in which a South Carolina spouse is engaging in sexual banter with someone who lives across state lines I presume the geographic distance is solid evidence that adultery is not being committed–absent additional evidence that the two have met in-person.  When a spouse lives and remains in South Carolina while the alleged paramour lives and remains on the West Coast is pretty conclusive evidence of no adultery.

Unless, of course, he has a 2,000 mile long penis.

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[1]My patient and wonderful wife of almost 23 years would like the world to know that she did not approve the title of this blog.

[2]Arguably our culture has made marriage less stable, rather than more stable, by seeming to grant spouses veto power over all aspects of the other’s sexuality but that is a topic for a different blog.

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