What is Adultery in South Carolina?

Infidelity is a leading cause of divorce. In fact, statistics have shown that about 50% of couples cite infidelity as a contributing factor to the breakup of their marriage. Many married clients suspect their spouse is cheating but lack solid proof. Others are confident their spouse is cheating because their spouse has left the marital home and moved in with a new love.

Although South Carolina has followed other states and adopted no-fault divorce, adultery still matters. In fact, it might matter a great deal. As our Aiken, SC divorce lawyer describes below, infidelity can cause a spouse to receive less marital property and prevent them from receiving alimony. Contact us today if you find yourself in this position and read on to learn what is adultery in South Carolina and how it will affect you.

What is Adultery in South Carolina?

Adultery occurs when a married person has sexual relations with someone other than their spouse. An “emotional affair” would not constitute adultery, even if you personally think it is cheating.

Is Adultery a Fault Ground for Divorce?

You can cite adultery as your reason for filing divorce papers. If you can prove it, you can get divorced as quickly as 90 days from the day you filed. By contrast, a no-fault divorce will take 12 months. Some of our clients are eager to finally get their divorce decree, so they consider alleging adultery as a fault ground.

However, few people actually get a divorce decree in 90 days, especially if they are arguing about child custody, alimony, or other issues. Those issues will need a trial before a judge, and you can expect to wait a year or possibly longer.

How Does Adultery Impact Your South Carolina Divorce?

In addition to being a ground for divorce, alimony impacts your case in many ways.

Alimony

In South Carolina, adultery will serve as a bar to receiving alimony. The cheating spouse can’t receive alimony unless they already have a signed marital settlement agreement or a permanent order of separate support and maintenance. You can find the law at S.C. Code § 20-3-130.

In practice, adultery could cost the cheating spouse considerable money. Judges award alimony based on many factors, so not every spouse would qualify. But if they could, they would lose out on alimony due to their cheating.

The cheating spouse might allege you condoned the adultery, meaning you forgave them. If they can prove that, then they might qualify for adultery. We go into more depth below on what a cheating spouse must prove.

Division of Marital Property

A judge will divide marital property and debts equitably in a divorce. South Carolina provides a list of factors for a judge to consider, one of which is marital fault or misconduct that contributes to the breakup of the marriage. Adultery certainly qualifies.

Of course, there are other factors a judge must consider, so it is hard to predict how adultery would impact your case. Sometimes, however, a spouse can receive much less marital property because of adultery.

Child Custody

Once upon a time, South Carolina judges would have punished a parent for committing adultery and possibly even denied that parent custody. Today, judges have seen everything, and adultery plays a very small role in child custody disputes. Judges must decide child custody based on the best interests of the child, and infidelity isn’t a key consideration—usually.

Of course, everything depends on the facts. If you have moved in with a new partner with a criminal record, that could impact child custody. The same is true if you leave your children to visit a romantic partner in a different city or state. But the bare fact of committing adultery is not grounds for denying custody.

Attorneys’ Fees

Infidelity can impact how a judge awards attorneys’ fees and costs. For example, a judge might order the cheating spouse to pay for the cost of an investigator, as well as associated costs with proving the adultery in court. This means the non-cheating spouse could get some of their attorneys’ fees paid for.

What Evidence Do You Need to Prove Adultery?

It’s not enough to simply allege adultery. That’s easy to do. Judges need evidence. If you allege adultery in a divorce, you’ll need proof by a preponderance of the evidence that your spouse did, in fact, commit adultery. This means you need to convince a judge it is “more likely than not” true that your spouse was unfaithful.

It’s admittedly difficult to catch people in the act. People engage in sexual activity behind closed doors, and you certainly don’t need surveillance video of two people naked together. Circumstantial evidence is usually enough. Under South Carolina law, you need to establish the “inclination and opportunity” to cheat.

For example, you might rely on:

Photographs of your spouse and their love bird coming and going from a motel or apartment building.
Witnesses who saw your spouse and lover kissing in public or going into a hotel for an hour or more.
Romantic emails, texts, or social media messages between the lovers.
DNA test if the lover got pregnant.

Your spouse might also admit to sexual relations, either to you or in a message to their lover. That is powerful evidence that adultery happened since you can use your spouse’s words against them in court.

What if a Spouse Forgives the Adultery?

Marriages are complicated. Your spouse might have forgiven the adultery. The legal term is “condonation,” meaning the couple has reconciled. For example, your spouse might have cheated two years ago, but you got back together. Now that you are divorcing, you raise adultery in your divorce papers. Your spouse can turn around and claim you forgave them for it, so a judge shouldn’t consider it.

Proving condonation is complicated. Generally, if the non-cheating spouse knew of the adultery, but the couple got back together for a considerable period of time, then a judge will assume the couple reconciled. Still, other factors are relevant, such as whether you had sexual relations while living together once again.

Contact Our South Carolina Divorce Lawyer for Assistance

Proving adultery in divorce is challenging. Let the team at Surasky Law Firm discuss whether it makes sense to allege adultery. Contact us to schedule a meeting.