\n<\/p>\n
As Charleston divorce lawyers<\/a>, we\u2019ve handled many cases that involve claims of adultery. In this article, we\u2019ll explain what adultery is, how to prove adultery in South Carolina, whether there are punishments for committing adultery, what happens if you forgive your spouse for committing adultery, and what to do if you suspect your spouse is cheating on you.<\/p>\n Under South Carolina law, Section 16-15-70<\/a>, adultery is defined as \u201cliving together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.\u201d\u00a0 Frequently, clients ask us how to prove adultery in South Carolina. Because sexual conduct usually occurs behind closed doors, it\u2019s often impossible to find direct proof of the sexual act. However, what is required to prove adultery in South Carolina is evidence that the spouse had the disposition to commit adultery and that he or she had the opportunity to do so. Family court attorneys often refer to these requirements as \u201cinclination and opportunity.\u201d<\/strong><\/p>\n 1. Inclination to Commit Adultery \u2013 <\/strong>People are entitled to have friends of the opposite sex. Just because two people were behind a closed door together, it doesn\u2019t mean anything happened. For this reason, courts require proof that the spouse had the \u201cinclination\u201d or a disposition to cheat. Proving inclination may be done through \u201clove letters,\u201d texts, or emails that give evidence of the romantic nature of the relationship or joining online dating or matchmaking services.<\/p>\n Another example would be a private investigator obtaining photographs of the adulterers holding hands while together or kissing each other as they say goodbye. Occasionally, we see a situation where one of the adulterers answers the door or walks to the mailbox in their pajamas or otherwise inappropriately dressed as if they were more than just friends. Some clients ask us, \u201cIs sexting considered adultery in South Carolina?\u201d Sexting alone is not adultery. However, sexting is proof of an inclination to commit adultery.<\/p>\n 2. Opportunity to Commit Adultery \u2013 <\/strong>To prove \u201copportunity,\u201d you must show that the spouse and their lover were behind closed doors for enough time to commit a sexual act. There is no black-and-white rule as to what exactly we need to show. Probably the best evidence of an opportunity comes through a private investigator getting surveillance footage or photographs of the adulterers being in the same house or hotel room.<\/p>\n Other forms of evidence can come from the testimony of friends or neighbors. However, they may be biased and usually will not have the documentation we can get from a private investigator. Occasionally, admissions by the cheating spouse can be found in text messages, emails, or Facebook posts. Sometimes, proof of hotel encounters comes through credit card statements or subpoenaing records directly from the hotel. Note that it is still adultery if you have relations with another person even if you are separated from your spouse. For more information on whether you can or should date during your divorce, please read our article on the subject by clicking here<\/a>.<\/p>\n If you are the spouse who initiates a divorce on the ground of adultery, there you are the person who must prove your spouse had an extramarital affair.<\/p>\n Technically, as set forth above, the definition of adultery includes \u201cintercourse.\u201d However, you can prove adultery by circumstantial evidence without showing actual proof of intercourse. For example, in one South Carolina case, the court found there was proof of adultery when the wife shared a room on a cruise with another man. Even though the wife denied that she had intercourse with the other man, the court held that the husband presented sufficient proof of adultery.<\/p>\n South Carolina courts have stated that South Carolina hasn\u2019t decided what other acts may constitute adultery. For example, South Carolina\u2019s Supreme Court found that homosexual activity can constitute adultery, which may suggest that oral sex is enough. Either way, because the actual sexual act is rarely proved, it won\u2019t make a difference in many cases.<\/p>\n No. However, proof of an emotional affair is proof of inclination to commit adultery as described above. In other words, have an emotional affair \u201cchecks one of the boxes\u201d to prove adultery and, if discovered by your spouse, will complicate your divorce by raising suspicions of an investigation into whether you are committing adultery.<\/p>\n Some clients ask us whether they will be punished for adultery questions such as \u201cCan you go to jail for adultery in South Carolina?\u201d As for whether you will go to jail for adultery, the answer is no. As for whether you will be punished, the answer is also no but there are significant consequences for committing adultery:<\/p>\n 1. Denial of Alimony<\/strong> \u2013 If a spouse gets caught in adultery, that spouse is \u201cbarred\u201d (permanently prevented) from receiving alimony<\/a> from the other spouse. The only exceptions to this rule are (1) if the parties have already formally signed a written property or marital settlement agreement or (2) if the court has issued a permanent order of separate support and maintenance or approved property or marital settlement agreement between the parties.<\/p>\n 2. Payment of Alimony<\/strong> \u2013 If you commit adultery and your spouse seeks alimony for you, you may risk paying more The family court must consider a list of factors when deciding how much alimony one party must pay to the other. One of the factors is \u201cmarital misconduct or fault.\u201d The court may increase the alimony amount if it feels doing so is fair and equitable because of the supporting party\u2019s adultery.<\/p>\n 3. Child Custody and Visitation<\/strong> \u2013 When deciding who should have custody of a child, the family court must do what it believes is in the child\u2019s best interests. Just because a spouse commits adultery, it doesn\u2019t necessarily mean that the parent shouldn\u2019t have custody. However, when a family court judge has to make a close call between two good parents, it is possible that the judge uses one parent\u2019s adultery as the tie-breaker.<\/p>\n A parent\u2019s morality is considered, and while adultery is not a \u201cmajor\u201d factor in many cases, it is still a factor. Indeed, if you expose your child to your new love interest, especially on an overnight basis, then some family court judges may decide that you are an unfit parent.<\/p>\n 4. Equitable Division of Property<\/strong> \u2013 One of the things that the family court must do in a divorce<\/a> case is divide the marital assets and debts. South Carolina law gives a list of factors for the judge to consider when making this division. One of the factors is the \u201cmarital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage.\u201d<\/p>\n Adultery counts as \u201cmarital misconduct or fault.\u201d So, a party guilty of adultery may have their share of the marital estate reduced because of the adultery. It\u2019s important to remember that \u201cmarital misconduct or fault\u201d is only one factor of many for the court to consider. In some cases, adultery does not make a massive difference in the division of the marital estate. In others, it makes a huge difference.<\/p>\n 5. Attorney\u2019s Fees and Costs<\/strong> \u2013 Family court judges have the discretion to award attorney\u2019s fees in divorce cases. To determine whether to award fees, the judge must consider (1) the parties\u2019 ability to pay their own fee, (2) the beneficial results obtained by counsel, (3) the respective financial conditions of the parties, and (3) the effect of the fee on each party\u2019s standard of living.<\/p>\n If a court decides to award attorney\u2019s fees when deciding how much, the judge must consider (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) the professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services.<\/p>\n In a 2006 case, our Court of Appeals stated that \u201cfault\u201d isn\u2019t something for the family courts to consider when awarding fees. However, if a party denies the adultery and forces the other spouse to go through the expense of proving it, a family court could order that the cheating spouse pay the fees and costs incurred in proving the adultery. We\u2019ve regularly seen family court judges order a cheating spouse to pay the private investigator\u2019s costs in obtaining evidence, even if it was done before the case was filed. Finally, even though \u201cfault\u201d is not considered, the cheating spouse\u2019s adultery will be on the judge\u2019s mind when awarding fees or making any other decisions in the case.<\/p>\n Some clients ask us whether there is there a statute of limitations on adultery in SC. The short answer is no. However, if you know your spouse committed adultery and you remain together with your spouse, you may have \u201ccondoned\u201d the adulterous activities. In other words, if you take actions that imply that you \u201ccondoned\u201d the adulterous conduct or that you and your spouse reconciled (made up) after the conduct was discovered, you may forfeit any claim you have to get a divorce on the ground of adultery.<\/p>\n Condonation can occur in a number of ways such as having sexual relations, including to reside, letters or emails expressing forgiveness, and the list goes on. There is no black-and-white rule on condonation either, and the family court judge will have to look at the facts of your case and decide whether the adultery was forgiven.<\/p>\n In South Carolina, condonation requires proof of \u201cforgiveness, express or implied, by one spouse for a breach of marital duty by the other\u201d and reconciliation. In most cases, reconciliation can be proved by showing the normal cohabitation of the husband and wife in the family home.<\/p>\n If the injured party has full knowledge of the misconduct such as adultery, and the couple resumes or continues living together for \u201cany considerable period of time,\u201d then this act of living together conclusively shows an intention to forgive or condone the marital misconduct. However, even if the parties continue to live together, a lack of sex is a pertinent factor in determining the existence of condonation. For example, in one case the court did not find proof of reconciliation where the husband continued to stay in the home on the advice of his lawyer but the couple didn\u2019t have sex with each other.<\/p>\n South Carolina law doesn\u2019t specify exactly what a \u201cconsiderable period of time\u201d is for purposes of condonation. However, several South Carolina cases give some guidance. For example, continuing to live together for five (5) months is proof of condonation according to two family law cases in South Carolina.<\/p>\n In one case the wife continued living with her husband for approximately five months before the couple separated. Our supreme court noted that although the relationship between the couple appeared to have been strained during that time, the evidence of five months of continued cohabitation convinced the court that the wife condoned the husband\u2019s misconduct. In another case, the court found that the husband condoned the wife\u2019s adultery when the couple continued to live together and voluntarily engage in sexual relations for approximately five months.<\/p>\n Two nights of staying together wouldn\u2019t likely be evidence of condonation. In that case, the evidence was insufficient to prove the husband condoned the wife\u2019s adultery by spending two nights in the home after the wife confessed her adultery when they did not sleep together and there was no agreement to reconcile.<\/p>\n In another case regarding condonation, despite continuing to maintain separate bedrooms after the wife admitted adultery, a couple went to marriage counseling twice, engaged in sex at least once a month for 10 months, and lived together for 14 months after her admission. Although the family court judge found that there was insufficient evidence of condonation, our appellate court disagreed and found that there was enough evidence to show that the husband forgave the wife for her adultery.<\/p>\n Many people don\u2019t realize that adultery is actually a crime in South Carolina, although the criminal definition is different from the family court definition. Criminal adultery is \u201cthe living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.\u201d<\/p>\n Technically, anyone who commits adultery in South Carolina is guilty of the \u201ccrime of adultery or fornication\u201d under Section 16-15-60<\/a> and is subject to a fine of between $100 to $500 and jail time between 6 months and one year. The good news is that we aren\u2019t aware of any local law enforcement agency that actually enforces this law. That doesn\u2019t mean they couldn\u2019t prosecute such a case if they wanted to.<\/p>\n After decades of representing people in their divorces in Charleston and the surrounding areas, we hear many stories of why our clients suspect their spouse may be cheating. While ever case is unique, here are some of the \u201cclassic signs\u201d that we\u2019ve seen in our cases that suggest your spouse may be cheaing on you:<\/p>\n There may be innocent explanations for your spouse\u2019s changes in behavior. Your spouse may be on a health kick. Your spouse may feel insecure about themselves and therefore they are less intimate. Your spouse may be suffering from depression and that is why they no longer plan for the future. Standing alone, many of these behaviors do not necessarily mean your spouse is cheating. However, when you see a combination of these behaviors, then it becomes more probable that your spouse is cheating on you.<\/p>\n We strongly recommend consulting with one of our divorce attorneys in Charleston<\/a>. We are experienced in dealing with these matters. Every case is different, and we need to learn the specific facts of your situation to advise you on how to proceed.<\/p>\nHow to Prove Adultery in South Carolina<\/h2>\n
Who Must Prove Adultery in South Carolina?<\/h2>\n
Do You Need to Prove that Your Spouse Had Sexual Intercourse to Prove Adultery in South Carolina?<\/h2>\n
Is an \u201cEmotional Affair\u201d Considered Adultery in South Carolina?<\/h2>\n
Is There a Punishment for Adultery in South Carolina?<\/h2>\n
What is Condonation of Adultery in South Carolina?<\/h2>\n
Is Adultery a Crime in South Carolina?<\/h2>\n
What are Some of the Signs that My Spouse is Cheating on Me?<\/h2>\n
\n
What To Do If You Suspect Your Spouse is Cheating in South Carolina?<\/h2>\n