Imagine you are married and you have strong suspicions your spouse has been cheating on you. You’ve seen not-so-secret texts on your spouse’s phone indicating your spouse planned to meet with their paramour when you were not home. You’ve heard rumors from your mutual friends of an affair. But no one has seen this alleged side relationship in person. You are wondering if this is enough evidence to establish adultery as a ground for fault-based divorce in South Carolina.
Elements of Adultery Claim
To establish an adultery claim in South Carolina, you will need to prove two elements:
- Your spouse had motive to have the affair; and
- Your spouse had the opportunity to have an affair.
Using the example above, you likely will be able to establish your spouse had motive to have the affair if you can produce the text messages planning and seeking the affair. Similarly, if your friends have seen these text messages or have spoken to your spouse about the affair, they could testify as to what they have witnessed.
However, you will need more proof to establish opportunity to have the affair. This is proven where you can show your spouse is frequently in a private place alone with their alleged paramour with an opportunity to consummate the affair.
Who Has the Burden of Proving Adultery?
While South Carolina case law is mixed on what the burden of proof is for establishing adultery, it is clear that the spouse trying to get divorced on grounds of adultery has the burden of first establishing a prima facie case of adultery. The majority of South Carolina cases have cited to a “mixed” burden of proof of “clear preponderance of the evidence.” Specifically, several cases have used the language that “Proof of adultery must be clear and positive and the infidelity must be established by a clear preponderance of the evidence.” Gorecki v. Gorecki, 387 S.C. 626 (Ct. App. 2010), McLaurin v. McLaurin, 294 S.C. 132 (Ct. App. 1987).
Do I Have to Have Eyewitness Testimony to Prove Adultery?
Not necessarily. While it would be helpful to establishing your claim, South Carolina courts have found direct evidence is not necessary to prove adultery. Specifically, the Court of Appeals of South Carolina noted in Prevatte v. Prevatte, 297 S.C. 345 (1989), that “Because adultery, by its very nature, is an activity which takes place in private, it may be proved by circumstantial evidence.” The Court of Appeals elaborated in Fulton v. Fulton, 293 S.C. 146 (1987) that adultery is “clandestine” in nature so getting direct evidence and eyewitness testimony is hardly ever possible. Accordingly, the Court found that you can prove the elements of motive and opportunity by circumstantial evidence. Indeed, in Griffith v. Griffith, the Court of Appeals found courts could draw an adverse inference against a spouse if he or she asserts the Fifth Amendment privilege against self-incrimination when asked to testify about alleged adultery.
If I Prove Adultery, What Are the Consequences for My Divorce?
There are several factors that are impacted by a finding of adultery in a South Carolina divorce:
- No Waiting Period: If a spouse can prove the other has committed adultery, they will not have to wait the requisite one year separation period that would otherwise be required for a no-fault divorce.
- Bar Spouse From Receiving Alimony: If a spouse is found to have committed adultery, S.C. Code Ann. §20-3-130 clearly states the adultery will be considered a bar from receiving alimony in the divorce case. This means that even if the spouse can otherwise show they would need financial support and be eligible for alimony, they could still be barred from receiving it. It should be noted that this bar extends to periods of separation between two spouses. That means even if you are living separate and apart from your spouse, you cannot engage in sexual relations with another person or that may considered a bar to receiving alimony.
- Less Marital Property if the Adulterer Dissipated Money on their Paramour: Although South Carolina family courts typically will not consider adultery when dividing the marital assets of a couple, one exception may be where a spouse can prove their spouse expended significant marital funds to buy expensive gifts or trips for their paramour or otherwise spend money on them. In these cases, the court will likely find the non-cheating spouse is entitled to reimbursement for part of the money spent.
Examples of Adultery From South Carolina Case Law
There are several key takeaways from South Carolina case law on adultery that are helpful to bear in mind when trying to gather proof of adultery:
- Adultery Does Not Necessarily Require Proof of Sexual Intercourse. Courts have found that mere sexual intimacy between one spouse and another person is enough to establish adultery. Specifically, in Nemeth v. Nemeth, 325 S.C. 480 (Ct. App. 1990), the court found the wife had committed adultery when she went on a cruise and stayed in a room with someone that was not her husband. The court made this finding despite the wife’s denial of adultery based on the fact that she suffered from chronic pain that made it hard for her to have sexual intercourse.
- Adultery Needs Evidence of a Romantic Relationship or Inclination. Courts have found that there needs to be evidence of a romantic relationship between the alleged adulterer and the alleged paramour. In McElveen v. McElveen, 332 S.C. 583 (Ct. App. 1998), the court declined to find a spouse committed adultery where there was “virtually no evidence of a romantic or sexual relationship,” noting lack of romantic written exchanges or other romantic gestures.
Contact an Experienced Greenville, South Carolina Family Law Attorney Today!
If you are trying to seek a fault-based divorce on the grounds of adultery, you should hire the dedicated Greenville, South Carolina family law attorneys at Elliott Frazier Law Firm, LLC to help you evaluate your evidence and determine whether you have sufficient proof to establish your spouse’s infidelity. Contact us today for a case evaluation!
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.