Adultery FAQs for South Carolina
What is adultery?
Adultery is when one spouse has a sexual or romantic relationship with another person while they are still married to someone else.
Is adultery considered a crime in South Carolina?
Yes, adultery is illegal in South Carolina. While rarely pursued under the criminal statute, it can have other major impacts on divorce settlements and financial responsibilities.
Can proving adultery speed up the divorce process in South Carolina?
Adultery is a ground for fault-based divorce in South Carolina that can be filed against your spouse. Fault-based divorces can be a “fast” divorce as long as other legal issues, such as custody and property distribution, have been resolved. Adultery can be a ground that would allow one party to hold their spouse responsible for alimony and potentially require them to pay attorney fees (in addition to their own). Adultery can also impact custodial rights regarding minor children if the children have been exposed to the adultery or the person with whom your spouse is involved.
How Does Adultery Impact Alimony in South Carolina?
While each case is different and outcomes may vary – often, if one spouse earns more money than the other and can prove the breadwinning spouse committed adultery, then they could be granted alimony and have their attorney’s fees covered. On the flip side, if the spouse that committed adultery would have been entitled to alimony, they may be prohibited from receiving said alimony.
Can child support calculations be impacted by adultery in South Carolina?
Adultery does not impact child support directly. However, effects of adultery could impact child support. Child support calculations are based on several factors which can include both parties’ incomes and the number of overnights the children are with each parent/party. The costs of health insurance and childcare expenses are also used in child support calculations. The number of overnights with children could be impacted if the children have been exposed or introduced to adultery or the paramour. Should alimony payments be awarded because of adultery, then that can impact child support calculations as well.
Can adultery affect child custody in South Carolina?
It depends. Child custody can be affected by adultery if the minor children have been introduced to the paramour while the parties are still married, if the minor children have witnessed adulterous behavior, and if the paramour is a danger or otherwise a cause for concern for the well-being of the minor children. If the party committing adultery has any of these issues presented in their case, then the number of overnights with their children could be reduced, depending on a judge’s perspective of how the adultery has impacted the children.
How can I prove adultery in South Carolina?
Adultery cases often do not include “red-handed” evidence and the law certainly does not require photos or videos of the actual adulterous behavior behind closed doors. The law requires that the party alleging adultery prove that the committing party had the opportunity and inclination to commit adultery—meaning that most evidence in adultery cases are circumstantial. Phone records, photographs of public display of affection (handholding, kissing, romantic behavior, etc.) or of the spouse and the paramour being at a place for a duration of time that would have allowed adultery to occur (even if they both say sexual intercourse did not “actually” occur) is usually the types of “proof” that substantiates adultery; however, each case is unique and other types of evidence are not necessarily excluded from proving adultery—small pieces of evidence, coupled together, can paint a big picture.
Can I start dating while I am separated but not yet legally divorced in South Carolina?
Each case is unique and if you and your soon to be ex-spouse have a signed Marital Settlement Agreement, the language of your actual agreement could potentially provide waivers and releases to date while separated but awaiting divorce (which would likely be classified as a “defense” to an adultery claim, if raised). However, according to the state law in South Carolina, because you are legally married to someone during the separation period you could potentially give your spouse the right to use adultery against you if you are dating someone before you are legally divorced.
Can adultery affect my divorce settlement in South Carolina?
Yes. Adultery can affect your divorce settlement in many ways, some of which are included in the FAQs herein. Other ways, not previously discussed, is that adultery can be considered in the property and debt allocation portion of the marital estate. Because adultery is listed as a factor for consideration under the property apportionment statute, adultery could allow the court to divide the property more in favor of one spouse or the other. Adultery can also require one spouse to pay attorney’s fees for the other spouse, in addition to their own attorney’s fees.
Beyond the financial aspects of your divorce and the impact adultery can have, adultery can also cause issues between you and your children. Often, the impact of adultery causes a strain on parental relationships, including co-parenting with your spouse/other parent of the children. Adultery can also open a world of evidence and embarrassing days of trial for the parties involved, witnesses, and extended family members and friends.
Can I sue for Alienation of Affection in South Carolina?
South Carolina does not recognize claims for “alienation of affection” or “criminal conversation.” So, you can’t sue your spouse’s paramour for breaking up the marriage. However, if the adultery occurred in a state that still recognizes these types of claims, it is possible one could sue their spouse’s paramour in that state, obtain a judgment, and then enforce the judgment in South Carolina.
I think my spouse may be cheating but I am not sure, what should I do?
You should immediately start taking steps to make sure the evidence is secured and that you do not do anything to potentially jeopardize your ability to use adultery in your legal proceedings You should immediately consult a family law attorney that has experience with adultery cases and knows what you need for evidence, the steps you should take even before you have evidence, and how best to prepare your case to your advantage if adultery is confirmed. You should also consider hiring a private investigator to begin researching and tracking your spouse to obtain evidence before your spouse becomes aware that you may know something. Often, small things that are not alarms for spouses end up being turning points for private investigators and attorneys to change the course of action—things such as a change in work hours, unexplained expenses on your bank account, sudden or drastic changes in appearances, habits, and desires; these may need a closer look to determine if they are indications that your spouse is being unfaithful.
If I find out my spouse is cheating, what should I do until I can see an attorney to protect myself and my case?
Save all evidence and make a second copy or get it out of your house and car and away from your spouse so they cannot destroy it if it is discovered:
- Do NOT tell your spouse that you “forgive them” or “you are going to work through this”
- Make notes and journal everything that your spouse admits, the dates, the details and what you can learn or find out without your spouse knowing you are documenting such things
- Make a list of property and debts that you know of and update it so that it remains current
- Do NOT verbally agree to custody, alimony, child support, or other terms with your spouse when you discover or are confronted with your spouse’s infidelity
- Do NOT threaten your spouse or the spouse’s paramour
- Do NOT post anything regarding the adultery on social media, do NOT call the paramour’s spouse or family; do NOT call your spouse or the paramour’s employer
- Do NOT follow or seek “street advice” from other people who have been involved in cases that involved adultery—no two cases are alike, and what works for one could be very detrimental to you or your case
- REMAIN CALM, document everything and get into an appointment with an attorney as soon as possible to get detailed legal advice regarding your case—no two family law cases are exactly alike.