As divorce attorneys in Charleston, SC, we’ve handled many cases that involve claims of adultery. When people catch their spouse cheating or are suspicious of their spouse cheating, they usually wonder whether they can prove adultery if they file a divorce case in family court. Clearly, sexual intercourse amounts to adultery. However, South Carolina courts have stated that South Carolina hasn’t decided what other acts may constitute adultery. For example, South Carolina’s 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’t make a difference in many cases.

Proof of Adultery in South Carolina

Because sexual conduct usually occurs behind closed doors, its often impossible to find direct proof of the sexual act. However, to prove adultery in South Carolina’s family court, one only need to show circumstantial evidence – that the spouse had a disposition to commit adultery and that he or she had the opportunity to do so. These requirements are often referred to by family court attorneys as “inclination and opportunity.”

Inclination to Commit Adultery

People are entitled to have friends of the opposite sex. Just because two people were behind a closed door together, it doesn’t mean anything happened. For this reason, courts require proof that the spouse had the “inclination” or a disposition to cheat. Proving inclination may be done through “love letters,” texts, or emails that give evidence of the romantic nature of the relationship, or joining online dating or match making services. 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 if they were just friends.

Opportunity to Commit Adultery

To prove “opportunity,” you must show 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 photographus of the adulterers being in the same house or hotel room. Other forms of evidence can come from the testimony of friends or neighbors, although they people may be biased and usually will not have the documentation that 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 by subpoenaing records directly from the hotel.

Condonation of Adultery

If you take actions that imply that you “condoned” 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. Condonation can occur 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.

If you can forgive a cheating spouse and keep the marriage together, especially when you have children, by all means, we do not wish to prevent that. However, adultery can have a major impact in some family court cases. We have seen many people put on their blinders with false hope. Depending on your situation, you may wish to at least consult with a family court lawyer and learn your rights.

What To Do If You Suspect Your Spouse is Cheating

We strongly recommend consulting with one of our divorce attorneys. The Charleston divorce lawyers at Futeral & Nelson 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 how to proceed. We may recommend hiring a private investigator and we can refer you to one. We may recommend having the home computer looked at by a forensic computer expert to look for photos, emails, and web history. We can refer you to one of these too. We may try and track down witnesses. Depending on your case, there could be numerous other ways to discover what you are looking for and to gather evidence of it for court. We have seen these situations many times, while hopefully you have not. You may want our advice before you go searching this trail by yourself.

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