As divorce attorneys in Charleston, we’re often asked about the effect adultery has on a divorce. As Charleston divorce lawyers, we’ve seen that adultery can effect the grounds for divorce, claims for alimony, the division of marital property, the calculation of alimony, child custody and visitation, and attorney’s fees.
Adultery is a Ground for Divorce in South Carolina
The grounds for divorce in South Carolina are (1) one year continuous separation, (2) adultery, (3) physical cruelty, (4) habitual drunkenness or drug use, and (5) desertion. If you can prove adultery to the court, then you can be divorced in as little as 90 days from the date you filed your case. However, if the other issues in the case are not resolved, rarely does the issue of a divorce get decided that quickly.
Adultery is a Bar to Alimony in South Carolina
If a spouse gets caught in adultery, that spouse is “barred” (permanently prevented) from receiving alimony 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 and (2) if the court has issued a permanent order of separate support and maintenance or approved a property or marital settlement agreement between the parties. So, if the parties are merely separated but planning on getting divorced, the spouse seeking alimony can bar him or herself from receiving alimony if he or she engages in a romantic relationship with another person. We regularly advise our clients to hold off on dating until we get the case resolved, and we caution them not to put themselves in a situation where an innocent “friendly” relationship could be construed the wrong way. Click here to learn how to prove adultery in South Carolina.
Effect on the Equitable Division of Martial Debts and Assets
One of the things that the family court must do in a divorce case is to 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 “marital 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.” Adultery counts as “marital misconduct or fault.” So, a party guilty of adultery may have his or her share of the marital estate reduced because of the adultery. It’s important to remember that “marital misconduct or fault” is only one factor of many for the court to consider. In some cases, the adultery does not make a huge difference in the division of the martial estate. In others, it makes a huge difference.
Effect on the Calculation of Alimony in South Carolina
Like the division of assets, the family court must consider a list of factors when deciding how much alimony one party must pay to the other. Like the division of assets, one of the factors is “martial misconduct or fault,” and the court may increase the alimony amount if it feels doing so is fair and equitable because of the supporting party’s adultery.
Effect on Child Custody and Visitation in South Carolina
When deciding who should have custody of a child, the family court must do what it believes is in the child’s best interests. Just because a spouse commits adultery, it doesn’t necessarily mean that parent shouldn’t 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’s adultery as the tie-breaker. A parent’s morality is something to be considered, and while adultery is not a “major” factor in many cases, it is still a factor. To learn more about child custody laws in South Carolina , click here.
Effect on Attorney’s Fees in South Carolina
Family court judges have discretion to award attorney’s fees in divorce cases. To determine whether to award fees, the judge must consider (1) parties’ 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’s standard of living. If a court decides to award attorney’s 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.
In a 2006 case, our Court of Appeals stated that “fault” isn’t 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’ve regularly seen family court judges order a cheating spouse to pay the private investigator’s costs in obtaining evidence, even if it was done before the case was filed. Finally, even though “fault” is not considered, the cheating spouse’s adultery might always be in the back of the judge’s head when awarding fees or making any other decisions in the case.
Suing the “Lover” in Civil Court
South Carolina does not recognize claims for “alienation of affection” or “criminal conversation.” So, you can’t sue your spouse’s lover for breaking up the marriage. However, if the adultery occurred in a state that does still recognize these types of claims, it is possible one could sue their spouse’s lover in that state, obtain a judgment, and then enforce the judgment in South Carolina.
Adultery is a Crime in South Carolina
Many people don’t realize that adultery is actually a crime in South Carolina, although the criminal definition is different from the family court definition. Criminal adultery is “the 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.” Technically, anyone who commits adultery in South Carolina is guilty of the “crime of adultery or fornication” 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’t aware of any local law enforcement agency that actually enforces this law. That doesn’t mean they couldn’t prosecute such a case if they wanted to.
We have seen adultery have great effects on some cases and little effects on others. Regarding child custody, division of assets, alimony, and attorney’s fees, there are just too many factors in play to give a blanket rule on how adultery can affect any given case. The bottom line is that the safest route is to not expose yourself by committing adultery.
Divorce Lawyers in Charleston, South Carolina
Adultery is hard for most people to forgive, and it often leads to the breakup of the marriage. If your marriage is ending, we encourage you to contact the lawyers at Futeral & Nelson to schedule a consultation and learn your rights. Family court can be a scary place, and it is never to early to get your game plan together.