Call Now!

August 28, 2023

What Proof Is Needed to Establish Adultery in a South Carolina Divorce?

What Proof Is Needed to Establish Adultery in a South Carolina Divorce?

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.

How to Prove Adultery in South Carolina

South Carolina divorce laws require adultery proof. Establishing adultery claims requires two main components:

  1. The cheating spouse had a motive for their affair.
  2. The cheating spouse had an opportunity for an affair.

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 adultery and infidelity evidence must be clear and well established.

Who Must Prove Adultery in South Carolina?

Do You Need an Eyewitness Testimony to Prove Adultery in South Carolina?

Individuals trying to prove adultery against their spouse in a divorce case will not always need eyewitness testimony. 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.

What Are the Impacts on My Divorce If I Prove Adultery


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 judges finalize 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.


Many divorcing couples go through alimony discussions to help spouses maintain 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.

READ  Understanding Weapons Offenses in South Carolina

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.

Is Adultery a Crime, and What are the Laws?

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.

Can You Go to Jail 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 and face up to six months to a year of imprisonment.

Can You Go to Jail for Adultery in South Carolina?

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.

Receive Quality Advice and Guidance From Lauren Taylor Law

When pursuing a divorce because of adultery in South Carolina, you need the right legal team. Lauren Taylor Law is experienced in family law, including divorce and adultery, and practices in Greenville, South Carolina. Whether you need help gathering evidence or determining case strength, Lauren Taylor Law can guide you through your divorce case and toward a desired outcome.

READ  Six Tips for Blended Families

Contact us today to discover how Lauren Taylor Law can support you through your divorce case.


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.

Does Adultery Impact Alimony?

Adultery has a significant impact on alimony in South Carolina. The spouse who commits adultery is permanently barred from receiving alimony from the other spouse.

There are exceptions to the rule depending on when the adultery took place. If a spouse begins a relationship with someone else after they’ve signed a marital or property settlement agreement, they can still receive alimony from the other spouse. A spouse can also be eligible to receive alimony if the court entered a permanent separate maintenance and support order after the spouses were living separately, but before the spouse began another relationship.

The innocent spouse may be eligible for alimony from the spouse who committed adultery. The judge may use adultery as one of the deciding factors when determining whether to award alimony — and if so, how much.

How Does Adultery Impact Equitable Property Division?

South Carolina is an equitable property state, meaning the court attempts to divide property fairly but not always evenly. It’s not a community property state where property is split 50/50.

Adultery can affect how a judge determines equitable property division. It’s particularly relevant in a scenario where the spouse who committed adultery spent a significant amount on their extramarital partner — such as buying them gifts, paying their rent or taking them to expensive restaurants. In such a situation, the court may determine that the innocent spouse is entitled to more of the remaining marital property.

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.

Is Adultery Against the Law?

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.

The legal definition of adultery differs somewhat from how the family court may interpret it. Legally, adultery is defined as carnal intercourse between a man and woman when either party is lawfully married to someone else.

During a divorce, a spouse doesn’t necessarily need to have a sexual relationship with another person for the court to decide that adultery occurred. For example, a family court could find that a spouse has committed adultery by taking another person on what could be construed as a date — or several dates.

Contact an Experienced South Carolina Family Law Attorney Today!

If your spouse committed adultery and you want to pursue an at-fault divorce, Lauren Taylor Law can help you. We’ll evaluate your evidence and help you understand how adultery affects the divorce process. Contact us today for a consultation.


Receive Quality Advice and Guidance From Lauren Taylor Law

What Proof Is Needed to Establish Adultery in a South Carolina Divorce?
Article Name
What Proof Is Needed to Establish Adultery in a South Carolina Divorce?
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.
Publisher Name
Lauren Taylor Law Firm
Publisher Logo