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What is Adultery in South Carolina?

As divorce attorneys in Charleston, South Carolina, we’ve seen that adultery can affect the grounds for divorce, claims for alimony, the division of marital property, the calculation of alimony, child custody and visitation, and attorney’s fees. In this article, we explain adultery in South Carolina, how adultery impacts alimony, the division of assets, and child custody. We also explain how to prove adultery and what happens if you condone (forgive) your spouse’s infidelity.

What is Adultery in South Carolina?

South Carolina law defines adultery as intercourse between a married person and someone other than that person’s spouse. Adultery is one of the “fault-based” grounds for divorce in South Carolina. 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 divorce get decided that quickly.

Is Adultery 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 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. So, suppose the parties are merely separated but planning on getting divorced. In that case, the spouse seeking alimony can bar him or herself from receiving alimony if they engage in a romantic relationship with another person. We regularly advise our clients to hold off on dating until we get the case resolved. 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.

Does Adultery Impact the Equitable Division of Marital Debts and Assets in South Carolina?

One of the things that the family court must do in a divorce case is dividing 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 their 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, adultery does not make a massive difference in the division of the marital estate. In others, it makes a huge difference.

Does Adultery Have an Impact on Alimony in South Carolina?

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 “marital misconduct or fault.” The court may increase the alimony amount if it feels doing so is fair and equitable because of the supporting party’s adultery.

Does Adultery Impact 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 considered, and while adultery is not a “major” factor in many cases, it is still a factor.

Does Adultery Impact Attorney’s Fees in South Carolina?

Family court judges have the 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. However, if a spouse condones an act of adultery, then that spouse can’t later use the adultery as a bar to paying alimony unless the other spouse repeats the offense.

What Happens if You Condone (Forgive) Adultery in South Carolina?

In South Carolina, condonation requires proof of “forgiveness, express or implied, by one spouse for a breach of marital duty by the other” and reconciliation. In most cases, reconciliation can be proved by showing the normal cohabitation of the husband and wife in the family home. If the injured party has full knowledge of the misconduct such as adultery, and the couple resumes or continues living together for “any considerable period of time,” 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’t have sex with each other.

How Do You Prove Condonation in a South Carolina Adultery Case?

South Carolina law doesn’t specify exactly what a “considerable period of time” 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:

1. 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’ continued cohabitation convinced the court that the wife condoned the husband’s misconduct.

2. In another case, the court found that the husband condoned the wife’s adultery when the couple continued to live together and voluntarily engage in sexual relations for approximately five months.

Two nights of staying together wouldn’t likely be evidence of condonation. In that case, the evidence was insufficient to prove the husband condoned the wife’s 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.

In a recent case, 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.

Can You Sue the “Lover” for Adultery in South Carolina?

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 recognizes 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.

Is Adultery 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” under Section 16-15-60 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.

Final Thoughts

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.

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