Absolutely Everything to Know About Committing Adultery in South Carolina
Written by: Megan Dell
One of the legal grounds for divorce in South Carolina is adultery. Read on to understand what adultery is, how to prove it for your divorce, whether it’s illegal, and the effects it can have on your case in Family Court.
What is Adultery Under South Carolina Law?
S.C. Code Ann. Section 16-15-70 provides “adultery” as the living together and carnal intercourse with each other orhabitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.
The statutory definition of adultery is similar to the common law definition as stated in Hull v. Hull, 21 S.C. Eq. (1 Strob. Eq.) 174 (1848): “Adultery is the illicit intercourse between two persons, one of whom, at least, is married.”
Proof of “sexual intimacy” or sexual relations is enough to support a finding of adultery; it is not necessary to prove the act of sexual intercourse occurred. As such, homosexual sexual intimacy between persons, at least one of whom is married to someone other than the sexual partner, constitutes adultery. RGM v. DEM, 306 S.C. 145 (1991).
However, for sexual acts to constitute adultery, they must be voluntary, knowing, and intentional. Though it is exceptionally rare, mental illness has been used as a defense to a claim of adultery. Rutherford v. Rutherford, 307 S.C. 199 (1992).
Can You Go to Jail for Committing Adultery in South Carolina?
Under South Carolina law, adultery is defined within the “Crimes and Offenses” statutes. Someone who is convicted of adultery may be punished by a fine between $100 and $500 and/or imprisonment for 6 to 12 months.
That being said, the crime of adultery is seldom investigated or prosecuted; rather it is used as a civil claim in Family Court.
Is Eyewitness Testimony Required to Prove Adultery in a South Carolina Divorce?
No, eye witness testimony isn’t required. Because of the clandestine nature of adultery, obtaining evidence of the act through eyewitness testimony is rarely possible; therefore, direct evidence is not necessary. Fulton v. Fulton, 293 S.C. 146 (Ct. App. 1987).
The South Carolina Court of Appeals has held: “Indeed, if it were not for circumstantial evidence, the practice of adultery would scarcely be known to exist.” Prevatte v. Prevatte, 297 S.C. 345 (Ct. App. 1989). The very nature of an extramarital affair is clandestine.
However, proof of adultery must be “clear and positive and the infidelity must be established by a clear preponderance of the evidence.” McLaurin v. McLaurin, 294 S.C. 132 (Ct. App. 1987). A finding of adultery is allowed where there is evidence of both the “opportunity” to engage in adultery and the disposition (or “inclination”) to commit adultery. Hartley v. Hartley, 292 S.C. 245 (Ct. App. 1987).
What is an “Opportunity” to Engage in Adultery?
The proof of adultery must be sufficiently definite to identify the time and place of the offense, and the circumstances under which it was committed. Odom v. Odom, 248 S.C. 144 (1966). In other words, a spouse seeking a divorce on the ground of adultery must be able to point to specific opportunities when the sexual act could have occurred including people being at the same location at the same time.
Approximate times, places, and circumstances are sufficient to prove adultery; the Family Court does not allow insufficiency in this respect to defeat a divorce where the Court is fully convinced adultery has in fact been committed and the offending party has had an opportunity to present a defense to the claim. DuBose v. DuBose, 259 S.C. 418 (1972).
Many litigants hire a private investigator to gather evidence a spouse has opportunities to engage in an extramarital affair. Other circumstantial evidence of opportunity to commit adultery includes hotel records and emails, text messages, or other communications between the parties to an affair about the times when they intend to meet or have previously met.
How Do You Prove “Inclination” to Commit Adultery?
Because sexual intimacy is likely to occur in private situations, South Carolina case law tends to look toward the behavior people exhibit in public to determine whether — if the same people were to be alone in private — they would be inclined to engage in adultery.
If a couple behaves affectionately in public, such as by holding hands, then South Carolina Family Courts may find that the same couple would be inclined to commit adultery if they were in a private place together.
“When two people…park by themselves at night in lonely places and purposely sit very close together…even the most dispassionate observer may very well infer that they are romantically disposed toward each other.” Prevatte v. Prevatte, 297 S.C. 345 (Ct. App. 1989).
A private investigator may also be hired to obtain video evidence of the behavior between two people when they are in public but not with people they expect to be paying attention to their behavior toward each other.
Communications between individuals engaged in an affair can also demonstrate their inclination to engage in sexual activity; for example, “sexting” clearly implies an attraction likely to result in sexual intimacy when an opportunity arises. Similarly, credit card statements or other proof of purchases made for the benefit of a third-party can help show a spouse has committed adultery.
Divorce lawyers can often provide guidance on the evidence to present in court to prove your spouse has been unfaithful.
Understanding the Effects of Cheating on Your Family Law and Divorce Case
Because divorce cases in South Carolina based on the legal ground of adultery are so different from what can happen in other states, here are some specific things to consider:
Cheating is a Basis for Divorce
S.C. Code Ann. Section 20-30-12 identifies the grounds upon which a divorce can be granted in South Carolina, including fault based divorces (on the grounds of adultery, habitual drunkenness, physical cruelty, and desertion) and no-fault divorce on the basis of living separate and apart for longer than 1 year.
This means a South Carolina fault based divorce can be filed, and granted, on the ground of adultery.
Cheating Can Affect Division of Assets and Debts
S.C. Code Ann. Section 20-3-620 details the factors South Carolina divorce courts consider when dividing marital property and debts through equitable division. One of these factors is “marital misconduct or fault of either or both parties…if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage.”
A cheating spouse may receive fewer marital assets if the affair affected the parties’ finances (such as if the spouse purchased lavish gifts for their paramour) or led to the breakup of the marriage.
Cheaters are Statutorily Barred from Receiving Alimony
South Carolina law punishes an unfaithful spouse in a way that is different from any other state: if you can establish adultery by one spouse, then they are not entitled to receive spousal support, alimony, or financial support of any kind from the non-cheating spouse.
S.C. Code Ann. Section 20-3-130(A) provides: “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance pay alimony and child support or of a permanent order approving a property division or marital settlement agreement between the parties.”
So if you commit adultery before the divorce lawyers division of property and other financial issues are resolved, then you can be prohibited from receiving alimony or spousal support from the other spouse. Likewise, if you do not discover the other party’s adultery until after a property or marital settlement agreement has been signed, you may be stuck paying alimony.
Exposing Your Child to Cheating Can Affect Custody
Marriage and divorce proceedings can have serious effects on children. Though the moral behavior of parents is increasingly less important for divorce in South Carolina, child custody and visitation can be affected if a parent has been unfaithful in a way that affects the children’s welfare or best interests.
For example, in Spreeuw v. Barker, 385 S.C. 45 (Ct. App. 2009), the father allowed his girlfriend to come to his home while the children were there, despite the older child being disturbed by her presence, and the girlfriend was allowed to stay at the father’s house past the children’s bedtime.
Cheaters May Be Required to Pay the Non-Cheating Spouse’s Attorney’s Fees
S.C. Code Ann. Section 20-3-130(H) provides, in divorce proceedings, South Carolina courts can order one party to pay a reasonable amount to the other for attorney fees, expert fees, investigation fees, costs, and suit money after considering the financial resources and marital fault of both parties.
For this reason, a faithful spouse is far less likely to be ordered to contribute to the fees incurred by the opposing party than a cheating spouse may be in a divorce case.
Get Advice about Adultery in South Carolina Family Court
Do you think your spouse committed adultery? If you suspect your spouse has been engaged in an extramarital affair, you should seek the advice of divorce attorneys who are knowledgeable about proving adultery. Schedule a consultation with an experienced family law attorney to learn more about fault based divorce.