How Do You Prove Adultery in a Divorce Action? Types of Proof to Prove Adultery

How Do You Prove Adultery in a Divorce Action? Types of Proof to Prove Adultery

Cheating on your spouse or committing adultery is legal grounds for divorce in South Carolina. If the carelessness of a cheating spouse has torn apart your marriage, you have the right to seek freedom from that marriage.

At Sarah Henry Law, we understand how stressful, frightening, and sensitive this time is for the wronged party, especially if children are involved. Our only goals are to help you understand your options, be efficient with your time and money, and minimize stress.

How is Adultery Defined Under South Carolina Law?

According to S.C. Code Ann. Section 16-15-70, adultery is defined as the act of living together and engaging in sexual intercourse or otherwise habitual sexual relations between a man and a woman when either person is legally married to someone else. 

Evidence of sexual intimacy or relationships is sufficient enough to establish adultery; you do not need to prove that the actual sexual intercourse took place. While the above laws specify a man and a woman, two men or two women can also commit adultery in the eyes of the law, as long as one involved individual is already married to someone else. For a sexual act to qualify as adultery, it must be voluntary, knowing, and intentional. Being the victim of a rape is not adultery.

Do You Need Eyewitness Testimony to Prove Adultery in a Divorce Court?

No, eyewitness testimony is not required. Due to the inherently secretive nature of adultery, obtaining direct evidence of the act through eyewitnesses is only sometimes possible. Direct proof of adultery is not necessary.

The Court of Appeals in South Carolina has emphasized, “Indeed, if it were not for circumstantial evidence, the practice of adultery would scarcely be known to exist.” (Prevatte v. Prevatte, 297 S.C. 345 (Ct. App. 1989).)

This does not mean that you can divorce someone over adultery without any proof at all. The demonstration of adultery must be “clear and positive, and the infidelity must be established by a clear preponderance of evidence.” (McLaurin v. McLaurin, 294 S.C. 132 (Ct. App. 1987). 

Explaining an Opportunity to Commit Adultery

For the evidence to be admissible, it must be specific enough to pinpoint the offense’s time, place, and circumstances. This means that a spouse seeking a divorce based on adultery must be able to identify specific instances where the sexual act feasibly could have taken place, including circumstances where both individuals were present simultaneously.

Approximate details regarding times, locations, and circumstances are acceptable for proving adultery; the South Carolina family court does not dismiss a divorce claim on the grounds of insufficiency if it is fully convinced that adultery has occurred and the accused party has had an opportunity to defend against the accusation.

Many individuals enlist the help of a private investigator to collect evidence indicating that a spouse had opportunities to engage in extramarital activities. 

Other circumstantial evidence demonstrating opportunities for adultery includes hotel records, and electronic communications (such as text messages, emails, and private messages on social media) exchanged between parties involved in the affair, discussing or arranging times to meet, or reminiscing about previous encounters.

Proving Inclination to Commit Adultery

Since sexual intimacy almost always occurs in private settings, South Carolina case law often examines individuals’ public behavior to infer whether they would be inclined to engage in adultery if they found themselves alone together.

For instance, if a couple displays affection in public, such as holding hands or exchanging a kiss, South Carolina family courts may conclude that the same couple would be likely to commit adultery if left alone in private.

Moreover, hiring a private investigator can yield video evidence of public interactions between individuals who do not know they are being recorded – meaning they are more likely to show adulterous behavior.

Additionally, communications between parties suspected to be involved in an affair, including “sexting,” can indicate an attraction likely to lead to sexual activity if given the opportunity. “Sexting” is precisely what it sounds like – sexual texting, often including nude photographs.

If you are still determining what evidence may be relevant, consider scheduling a consultation with one of our family law attorneys at Sarah Henry Law. We are here to help you understand your position and how best to proceed.

How Does Adultery Affect Your Case?

Cheating is Grounds for Divorce

Grounds for divorce in South Carolina are established in S.C. Code Ann. Section 20-30-12, which includes adultery, habitual drunkenness, physical cruelty, and desertion. This section also outlines grounds for a no-fault divorce, such as living apart for over a year for reasons unrelated to adultery, abuse, or desertion.

Adultery Can Affect the Division of Assets and Debts

South Carolina divorce courts take into account various factors when distributing assets and debts to ensure it is as equitable as possible. One such factor is as outlined in S.C. Code Ann. Section 20-3-620: “marital misconduct or fault of either or both parties… if the misconduct impacts or has impacted the economic circumstances of the parties, or contributed to the dissolution of the marriage.”

If a spouse’s infidelity altered the couple’s financial situation (for example, if the cheating spouse spent significant money on gifts for their lover) or contributed to the marriage’s breakdown, they may receive a smaller share of marital assets.

Cheaters Cannot Receive Alimony

Under South Carolina law, an unfaithful spouse faces a unique consequence: if adultery is proven, they forfeit any entitlement to spousal support, alimony, or financial assistance from the faithful spouse. This provision holds significant weight in discussions regarding alimony.

Engaging in adultery prior to the resolution of dividing assets and finances through divorce proceedings can result in the adulterous spouse being barred from receiving alimony or other forms of spousal support.

However, if evidence of adultery surfaces after the signing of a settlement agreement, the faithful spouse may still be obligated to pay alimony.

Exposing Your Child to Extramarital Affairs Can Affect Custody

Tumultuous marriages and the resulting divorces can profoundly impact children’s mental, emotional, and sometimes physical well-being. When infidelity is involved, it also impacts the custody arrangement.

While the moral conduct of parents holds diminishing significance in South Carolina divorce proceedings, it can influence child custody and visitation rights if the unfaithful behavior jeopardizes the children’s welfare of best interests.

The Adulterous Spouse May Have to Pay the Faithful Spouse’s Attorney Fees

It is established in S.C. Code Ann. Section 20-3-130(H) that during divorce proceedings, South Carolina courts have the authority to mandate that one party must cover expenses such as attorney fees, expert fees, investigation fees, and other related expenses depending on the marital fault and differing financial needs and resources of each party.

Finding the Right South Carolina Divorce and Family Law Attorney for You

Do you suspect your spouse may have committed adultery? Sarah Henry Law specializes in South Carolina Family Law, and we are here to help you.

We understand how frightened, isolated, and uncertain you may feel. We want to help you navigate this difficult circumstance as easily as possible. We are here to provide support, information, and do whatever we can to use your time and money to efficiently resolve your case.

Schedule a consultation with one of our compassionate, experienced South Carolina family attorneys today by calling us at 864-478-8324 or filling out this form.

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