Discovering your spouse is cheating can be devastating. For many individuals, this behavior will lead them to end their marriage. If you are pursuing a divorce in South Carolina with adultery involved, you must compile and establish proof as part of your case. Knowing what you must get can strengthen your divorce case and secure the outcome you want.
What Are the Adultery Laws in South Carolina?
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In South Carolina, under SC Code § 16-15-60 , adultery is a crime. South Carolina’s code of laws defines adultery as carnal intercourse between a man and a woman. Either or both of the involved individuals could be married to others. This crime can occur while the adulterers live together or habitually visit each other. However, the law doesn’t require you to prove actual sexual intercourse took place. You only need evidence of “sexual intimacy” or sexual relations to establish adultery in divorce proceedings.
Do I Need to Prove Adultery in South Carolina?
South Carolina divorce laws require proof of adultery if you are filing for a fault-based divorce on the grounds of infidelity. Filing for a fault-based divorce eliminates the one-year waiting period required for no-fault divorces. Additionally, proving adultery can significantly impact alimony, property division and even attorney’s fees.
Establishing adultery claims requires two main components, known as the legal framework of inclination and opportunity:
- Inclination or motive: The cheating spouse had a disposition or romantic interest toward their affair partner.
- Opportunity: The cheating spouse had the chance to consummate the affair in private.
For example, you can prove the motive aspect if you can locate any text messages of your spouse planning and pursuing the affair. Friends, family members or acquaintances who also saw the texts or talked to your spouse regarding the affair can testify as witnesses to help establish the motive and strengthen evidence.
To prove the affair’s opportunity, you will need to show your spouse regularly and privately met with their affair partner to consummate their affair. For example, you might provide evidence of them booking hotel rooms in the vicinity of their affair partner’s home. Receipts and financial information can be powerful evidence for individuals going through a divorce with adultery.
Who Must Prove Adultery in South Carolina?
In South Carolina, the spouse who initiated the divorce on adultery grounds is the one who must prove the affair. Usually, adultery cases first require a prima facie case, which is when evidence is reviewed by the judge in pre-trial proceedings. This process will help the judge determine if divorce on the grounds of adultery is valid.
Regardless of who is responsible for the burden of proof in an adultery case, South Carolina requires that adultery and infidelity evidence be clear and well-established.
How Do You Prove Adultery in Court?
To prove adultery in court in South Carolina, you must provide clear and positive evidence that infidelity occurred. You should gather evidence of various types to build the strongest possible case:
- Direct evidence like written or verbal admissions of the affair, eyewitness testimony of sexual activity, photographs or videos showing intimate physical contact, love letters and romantic gifts.
- Circumstantial evidence such as hotel receipts, credit card statements showing suspicious purchases, GPS data, dating app activity and documented absences.
- Digital evidence like social media messages, calendar entries showing secret meetings, text messages expressing affection and sexually explicit photos.
- Behavioral evidence such as changes in daily routines, sudden interest in appearance or fitness, defensive behavior when questioned about activities and decreased intimacy in the marriage.
It’s important to note that the best way to prove adultery in court is with direct evidence, with supporting proof from other categories. Additionally, South Carolina law does not consider some things adultery, especially when presented independently, including:
- Online relationships that never progress to in-person meetings
- Flirtatious behavior or inappropriate friendships without sexual contact
- Sexting alone, though it can help prove inclination
- Emotional affairs without any physical intimacy
What Is the Punishment for Adultery in South Carolina?
Criminal adultery can result in legal punishments. South Carolina adultery laws state that individuals convicted of adultery can receive fines of up to $500 or face up to six months to a year of imprisonment.
However, criminal prosecution for adultery is extremely rare. Law enforcement agencies rarely investigate these cases, and prosecutors almost never pursue criminal charges. The real impact of adultery laws today occurs in family court during divorce proceedings, not in criminal court.
What Are the Impacts on My Divorce if I Prove Adultery
Adultery can impact many aspects of your divorce, from the speed of legal proceedings to the type of benefits and reparations you receive after the judge finalizes the divorce. Understanding how adultery can work for or against your case can better prepare individuals for their trials.
No Waiting Period
Many individuals put off divorce proceedings because they can be long and lengthy, considering various factors and past events to determine asset splits and child custody. Further, court systems often have many cases to handle, which can push back nonpriority cases like divorces.
In South Carolina, no-fault divorces usually require a one-year separation period before they can proceed with a divorce. Proving adultery allows couples to forgo this waiting period and quickly start the divorce process.
Alimony
Many divorcing couples go through alimony discussions to help spouses maintain their lifestyles and standards of living. However, when divorce proceedings involve adultery, it can change the circumstances in which couples receive or give alimony payments.
Judges can withhold alimony from individuals in divorce cases that involve adultery if the affair occurred before signing a written separation agreement or receiving judge approval to settle property and marital status. For couples who decide to live separately and stay married, the cheating must occur before courts issue a permanent order of separate maintenance and support.
SC Code §20-3-130 prevents spouses who committed adultery from receiving alimony in their divorce cases. Even if spouses can prove and argue that they would need financial support or meet other eligibility requirements to receive alimony, the courts will bar them from getting it.
The alimony bar also applies to separation periods between married couples. Even if you decide to split and live in separate lodging from your spouse, any sexual relations could be considered adultery and could prevent you from receiving alimony.
The cheating spouse may also have to pay alimony . Circumstances will be reviewed by the judge presiding over the case, looking at factors like the marriage’s length and each spouse’s earnings and expenses. The judge also gets to decide how much spouses will receive and for how long.
Equitable Property Division
South Carolina honors equitable property division in courts , meaning that judges will divide assets and properties in a way that feels fair. They will base their judgment on the factors leading to the divorce. Even in cases without adultery, judges might not split property 50-50, instead allocating assets in a way they feel best reflects the case and its circumstances.
South Carolina family courts will consider adultery when dividing marital assets if the cheating spouse spent excessive and significant marital funds on their affair. For example, they might buy their affair partner expensive gifts or spend large sums of money to rent hotel rooms or travel to meet their affair partner. In some cases, the judge will require the cheating partner to pay their spouse a reimbursement for the money spent on the affair.
Like with alimony decisions, the judge’s calls also depend on the timing and circumstances around the adultery. The affair must have occurred before the couple signed a separation agreement. Further, one partner can get favor over assets and property if the adultery ended their marriage.
Child Custody
In South Carolina, judges make decisions surrounding child custody and visitation based on their child’s best interests. They have a lot of flexibility with their considerations and rarely use adultery cases in their decisions. Instead, judges review the facts and circumstances surrounding the affair and determine if it impacts the involved spouse’s ability to care for and parent the child.
Adultery often impacts child custody if the parent who didn’t commit adultery uses the child for revenge or against the other spouse for cheating. Judges will consider if parents involve their children in fights and disputes or if they discourage their children from having relationships with the other parent moving forward. Maintaining a healthy family dynamic for children can help both parents retain some type of visitation and custody.
Attorney’s Fees
In South Carolina, SC Code Ann. § 20-3-130(H) gives courts the authority to order one spouse to pay the other’s attorney fees, expert fees, investigation fees and court costs if adultery is proven.
When making this decision, judges consider each party’s financial resources and marital fault. The judge is more likely to rule in favor of this decision if you had to hire a private investigator or incur other significant costs to prove adultery.
Adultery Examples From the Law in South Carolina
Reviewing other cases of adultery in South Carolina divorce law can help individuals prepare for upcoming cases. These cases can highlight other circumstances that might be relevant to your circumstances. For example:
Adultery Cases Don’t Always Need Proof of Sexual Intercourse
While the definition of adultery in South Carolina requires sexual intercourse to establish adultery, you can prove it in a divorce case if you can demonstrate sexual intimacy between a spouse and another individual.
In Nemeth v. Nemeth, 481 S.E. 2d 181 (1997) , the judge ruled that one spouse committed adultery when she shared a room with someone on a cruise who wasn’t her husband. Despite the wife’s claim that she couldn’t have sexual intercourse because of chronic pain, the court still determined the circumstances qualified as adultery.
Adultery Cases Require Evidence of or Tendency for a Romance
South Carolina law specifies that adultery only needs a sexual component, but courts have set a precedent that a romantic element may be necessary between the cheating spouse and their affair partner. McElveen v. McElveen, 506 S.E. 2d 1 (1998) , represents a case where the courts couldn’t prove adultery because there was no evidence that their relationship was romantic or sexual in nature.
FAQs
In South Carolina, adultery is grounds for an at-fault divorce. Proving adultery affects many aspects of the divorce process, including the time it takes, how property gets divided and whether a spouse is eligible for alimony.
Is Adultery Illegal in South Carolina?
Technically, adultery is illegal in South Carolina . In practice, it’s very rare for a person to be criminally punished for cheating. The criminal penalty for adultery is either a fine of up to $500 or a prison term of up to one year.
Do You Need an Eyewitness Testimony to Prove Adultery in South Carolina?
You don’t always need eyewitness testimony to prove adultery. Because adultery is generally a very private and secretive act, collected evidence is often circumstantial , like hotel reservation confirmations and receipts. However, if you can secure an eyewitness testimony, it can help strengthen your claim and evidence.
Can I Use Evidence I Found on My Spouse’s Phone?
Evidence from devices or accounts you jointly own or have legal access to may be admissible in court. However, evidence obtained illegally, such as by hacking into accounts or using illegal surveillance, will likely be excluded and could result in legal consequences for you. Consult an attorney before collecting any evidence to ensure you’re acting within the law.
What if My Spouse Denies the Affair?
A spouse’s denial alone is not enough to overcome strong evidence of adultery. Courts will carefully evaluate all the evidence you present, including text messages, financial records, witness statements and patterns of behavior. The legal standard is “clear and convincing evidence,” which means you need substantial proof but not absolute certainty.
Can You Lose Custody Due to Adultery?
Adultery on its own usually isn’t reason enough for a parent to lose custody of their children. Judges determine custody based on what they think is best for the kids. They’ll examine which parent is better equipped to care for and financially support them. If both parents can provide adequate care and financial support to the kids, the judge may put more weight on the adultery when making their decision.
Receive Quality Advice and Guidance From Lauren Taylor Law
When pursuing a divorce because of adultery in South Carolina, you need compassionate legal guidance to protect your future. Lauren Taylor Law is experienced in family law , including divorce and adultery, and understands the emotional and financial complexities you’re facing. Whether you need help gathering evidence or determining case strength, our attorneys in Greenville can guide you through your divorce case and toward a desired outcome.
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South Carolina divorce attorney Lauren Taylor practices family law in Charleston and Greenville. She graduated from the Charlotte School of Law, and has been practicing for more than ten years.
Since the firm’s inception in 2012, Mrs. Taylor has helped hundreds of people navigate the uncertainties surrounding the family and criminal court process.
She has cultivated a team that ensures each case has a strategy crafted specifically to the clients needs and desires.
Her commitment to top notch service has led her to open two additional offices in the low country where she now resides with her husband Michael and her golden retriever, Buster.