Nordness v. Faucheux – When Infidelity Destroys a Marriage

A recent attempt by an ex-wife to sue her former husband’s mistress for alienation of affection was thwarted by the fact that the contacts between husband and mistress did not occur frequently enough in the state of Mississippi for the state court to have jurisdiction. Primarily, the contacts occurred out-of-state, while husband was traveling as a pilot for a mail carrier.

The case of Nordness v. Faucheux, before the Mississippi Supreme Court, is what is referred to as “alienation of affection.”

Alienation of affection is a common law tort brought by a deserted spouse against a third party alleged to be responsible for the end of a marriage. It has been abolished in most jurisdictions, including Indiana. In Mississippi, however, it still remains a viable cause of action.

In this case, the court could not claim jurisdiction because the majority of the contact between husband and mistress occurred out-of-state. Husband and wife resided in Mississippi, but husband made frequent trips to Louisiana, where he met the “other woman.” Eventually, the wife discovered the affair and her husband reconciled with her. However, the affair continued until the mistress moved to North Carolina. Then several months later, husband flew to her home state, came to her workplace and declared his love. Their affair once again resumed, with contacts occurring all over the country – but never in Mississippi. Because there was not sufficient contact in the state where the claim was filed, the case was dismissed.

Despite the fact that alienation of affection claims are no longer allowable in Indiana, infidelity may still have some impact on an Indiana divorce, depending on the circumstances.

It’s important to note first that Indiana is a no-fault state when it comes to divorce. That means the reason why the two people are divorcing is not a primary consideration. So a cheating spouse need not be awarded any less solely on that fact.

However, there are some ways in which infidelity could become relevant. The first scenario is that of dissipation. In Indiana, there is a general presumption that all marital debts and assets are going to be split equitably. However, that presumption may be rebutted if one can show a cheating spouse used marital assets on the other person during the marriage. This could be considered dissipation. So for example, if an unfaithful wife spends money from the joint bank account she shares with her husband to make repeated flights to see a man with whom she’s having an affair, this could reduce the amount of assets to which the court may find she’s entitled.

Another area of divorce law in which infidelity may factor is child custody. In some cases, it may be deemed significant. The court will not automatically equate infidelity with being an unfit parent. However, the court may consider the cheating spouse’s judgment if, for example, the mistress was introduced to the children at some point or if the new boyfriend or girlfriend poses any danger to the children (i.e., alcohol, drugs, sex offender, etc.).

The cases in which infidelity is going to matter will be fact-specific. That’s why it’s important to consult with an experienced Highland divorce lawyer before deciding best how to proceed.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:
Nordness v. Faucheux, May 28, 2015, Mississippi Supreme Court
More Blog Entries:
Bogner v. Bogner – Indiana Supreme Court Weighs Child Support Modification, May 30, 2015, Highland Divorce Lawyer Blog