Phone Sex and No-Fault Divorce

no-fault divorce and phone sex

Now that Monica Lewinsky is back in the spotlight, we thought it was time for a blog post dedicated to sex and marriage.  Specifically, we will discuss whether a married couple who lives apart but has phone sex may still be granted a no-fault divorce on the ground of living apart.

In Texas, a divorce may be granted in favor of either spouse on the no-fault ground of living apart if (1) the spouses have lived apart (2) without cohabitation (3) for at least three years.  Tex. Fam. Code §6.006.  The question is: What is cohabitation?

“Cohabitation” traditionally refers to the act of living together in an intimate relationship.  Kurtz v. Jackson, 859 S.W.2d 609, 612 n.2 (Tex.App.—Houston [1st Dist.] 1993, no writ); Fusselman v. Fusselman, No. 09-11-00435-CV (Tex.App.—Beaumont 2013, no pet.) (memo op.; 9-23-13) (defining “cohabitation” as “[t]he fact or state of living together, especially as partners in life, and usually with the suggestion of sexual relations”). Although cohabitation is a concept that embraces more than a couple’s sexual relationship, Claveria v. Estate of Claveria, 597 S.W.2d 434, 437 (Tex.App.—Dallas 1980), rev’d on other grounds, 615 S.W.2d 164 (Tex.1981), Joanna L. Grossman of the Verdict Justia blog explains that “in the divorce context, cohabitation means sex.” Thus, a couple that is living separate and apart with the intent to establish the no-fault ground of living apart should try to refrain from sexual relations throughout the entire three-year period.

So what conduct qualifies as “sex?”  Will, for instance, sexually explicit or provocative telephone conversations and text messages, unaccompanied by intimate physical sexual contact, constitute sex? Or does a person only engage in sex when, as President Bill Clinton’s lawyers so famously asserted, “the person knowingly engages in or causes contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person.” The answer, according to the Maryland Special Court of Appeals, is probably much closer to the Clinton definition.

“[W]e hold that the circuit court erred in its determination that phone sex or sexual language in text messages constituted cohabitation that precluded the grant of an absolute divorce.

In our view, occasional instances of telephonic or electronic communication talking about sex, unaccompanied by intimate physical sexual contact, do not rise to the level of cohabitation….

Bergeris v. Bergeris, No. 0405, September Term, 2013 (Md. Ct. Spec. App. Apr. 30, 2014).

Similarly, courts of other states have indicated that extensive telephone conversations are not sufficient evidence to constitute adultery in the divorce context.  “Telephone calls … are not the type of ‘opportunities’ for sexual intercourse” required to demonstrate adultery. See, e.g., Coachman v. Gould, 470 S.E.2d 560 (N.C.Ct.App.1996) (court rejected husband’s claim that wife had committed adultery by virtue of her sexually explicit phone calls).  While “the phone calls certainly show [ ] some [] contact,” sex connotes sexual intercourse, i.e., sex involving physical contact.  Marcotte v. Marcotte, 886 So.2d 671 (La. Ct. App. 2004); see also Black’s Law Dictionary 932 (10th ed. 2014) (defining “sexual intercourse” as “physical sexual contact, esp. involving the penetration of the vagina by the penis”).  Without sexual intercourse, there can be no adultery, See In re Marriage of C.A.S., 405 S.W.3d 373, 383 (Tex.App.—Dallas 2013, no pet.), and, likely, no cohabitation.

Given the relevant precedent and the fact that “there’s no way to define phone sex,” it is unlikely that Texas will endorse phone sex as sex that rises to the level of cohabitation.  The Bergerises of the world can continue to engage in phone sex without fear of jeopardizing their chances of obtaining a no-fault divorce on the grounds of living apart.

For up-to-date information on cohabitation and divorce in general, check out O’Connor’s Family Law Handbook.

flickr image “Telephone” by Tim G. Photography is licensed under CC BY 2.0

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