How to Prove Adultery in South Carolina – A Guide to SC Law

As Charleston divorce lawyers, we’ve handled many cases that involve claims of adultery. In this article, we’ll explain what adultery is, how to prove adultery in South Carolina, whether there are punishments for committing adultery, what happens if you forgive your spouse for committing adultery, and what to do if you suspect your spouse is cheating on you.

How to Prove Adultery in South Carolina

Under South Carolina law, Section 16-15-70, adultery is defined as “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.”  Frequently, clients ask us how to prove adultery in South Carolina. Because sexual conduct usually occurs behind closed doors, it’s often impossible to find direct proof of the sexual act. However, what is required to prove adultery in South Carolina is evidence that the spouse had the disposition to commit adultery and that he or she had the opportunity to do so. Family court attorneys often refer to these requirements as “inclination and opportunity.”

1. 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 matchmaking 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 as if they were more than just friends. Some clients ask us, “Is sexting considered adultery in South Carolina?” Sexting alone is not adultery. However, sexting is proof of an inclination to commit adultery.

2. Opportunity to Commit Adultery – To prove “opportunity,” you must 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 photographs of the adulterers being in the same house or hotel room.

Other forms of evidence can come from the testimony of friends or neighbors. However, they may be biased and usually will not have the documentation 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 subpoenaing records directly from the hotel. Note that it is still adultery if you have relations with another person even if you are separated from your spouse. For more information on whether you can or should date during your divorce, please read our article on the subject by clicking here.

Who Must Prove Adultery in South Carolina?

If you are the spouse who initiates a divorce on the ground of adultery, there you are the person who must prove your spouse had an extramarital affair.

Do You Need to Prove that Your Spouse Had Sexual Intercourse to Prove Adultery in South Carolina?

Technically, as set forth above, the definition of adultery includes “intercourse.” However, you can prove adultery by circumstantial evidence without showing actual proof of intercourse. For example, in one South Carolina case, the court found there was proof of adultery when the wife shared a room on a cruise with another man. Even though the wife denied that she had intercourse with the other man, the court held that the husband presented sufficient proof of adultery.

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.

Is an “Emotional Affair” Considered Adultery in South Carolina?

No. However, proof of an emotional affair is proof of inclination to commit adultery as described above. In other words, have an emotional affair “checks one of the boxes” to prove adultery and, if discovered by your spouse, will complicate your divorce by raising suspicions of an investigation into whether you are committing adultery.

Is There a Punishment for Adultery in South Carolina?

Some clients ask us whether they will be punished for adultery questions such as “Can you go to jail for adultery in South Carolina?” As for whether you will go to jail for adultery, the answer is no. As for whether you will be punished, the answer is also no but there are significant consequences for committing adultery:

1. Denial of Alimony – 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.

2. Payment of Alimony – If you commit adultery and your spouse seeks alimony for you, you may risk paying more 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.

3. Child Custody and Visitation – 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 the 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. Indeed, if you expose your child to your new love interest, especially on an overnight basis, then some family court judges may decide that you are an unfit parent.

4. Equitable Division of Property – One of the things that the family court must do in a divorce case is 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 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.

5. Attorney’s Fees and Costs – 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) the 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 will be on the judge’s mind when awarding fees or making any other decisions in the case.

What is Condonation of Adultery in South Carolina?

Some clients ask us whether there is there a statute of limitations on adultery in SC. The short answer is no. However, if you know your spouse committed adultery and you remain together with your spouse, you may have “condoned” the adulterous activities. In other words, 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 in 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.

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.

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.

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 of continued cohabitation convinced the court that the wife condoned the husband’s misconduct. 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 another case regarding condonation, 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.

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.

What are Some of the Signs that My Spouse is Cheating on Me?

After decades of representing people in their divorces in Charleston and the surrounding areas, we hear many stories of why our clients suspect their spouse may be cheating. While ever case is unique, here are some of the “classic signs” that we’ve seen in our cases that suggest your spouse may be cheaing on you:

  • Your Spouse is Unavailable – Cheaters need time and privacy to cheat. If your spouse starts “dropping off the radar” for extended periods of time, that may be a sign of cheating.
  • Your Spouse is No Longer Intimate with You – If you find your spouse’s libido changes and he or she is no longer intimate with you and/or becomes emotionally unavailable, then they may be cheating.
  • Your Spouse Becomes Protective of Their Phone and Their Conversations – In most committed relationships, it is not uncommon for spouses to look at each other’s phones from time to time and to freely talk and text on their phones in their spouse’s presence. However, if your spouse becomes increasingly protective about their phone, or is talking calls by stepping into another room or outdoors, they may be hiding their infidelity.
  • Your Spouse Doesn’t Talk About the Future – In a committed relationship, couples continously talk about the future such as upcoming evenings out, holidays, travel plans, etc. Some of these discussions go deeper such as plans to move, plans to remodel a home, planning for retirement, etc. However, when these conversations stop, it may be a sign that your spouse is no longer thinking about future with you because they are making plans with someone else.
  • Sudden, Unexplained Expenses – For many cheaters, their is a cost associated with entertaining and spending time with their new love interest. Although some cheaters make the mistake of putting charges (such as dinners out, hotel rooms, etc.) on credit cards, most cheaters are too saavy to use a credit card. Instead, these cheaters will start to make large, unexplained cash withdrawals. In either case, if you see unexplained, unusual changes in your spouse’s spending habits, this may be a sign of cheating.
  • Changes in Social Media Posts – Many couples will post photos and information about themselves such as holiday gatherings, evenings out, birthdays, and more. If your spouse typically shared photos of the two of you together, but stops posting about you while continuing to use social media, then this may be a sign your spouse is cheating on you.
  • Your Spouse’s Friends are Less Friendly Towards You – Some cheaters will discuss their infidelity with their friends. Some of these friends may be your “friends” too such as getting together for holidays, dinners, evenings out, etc. If your spouse’s friends start to give you the cold shoulder, distance themselves from you, etc., it may be because they feel awkward being around you know that you are being cheated on.
  • Your Spouse is More Interested in the Personal Appearance – Standing alone, if your spouse is dressing better, grooming better, exercising, and losing weight, these things are not necessarily a sign of infidelity. However, if a sudden interest in personal appearance is combined with some of these factors, such as being unavailable or lack of intimacy, this new interest in appearance may be a sign that your spouse is cheating on you.
  • Your Spouse Can’t Keep Their Story Straight – Cheating involves lying and deception. Lying and deception involves misdirection from reality and the truth. The more the lies and deception build up, the harder it becomes for the cheater to keep their story straight. If you find that things don’t add up and, oftentimes, your spouse becomes angry or defensive when you ask questions, these may be signs that your spouse is cheating.
  • Your Spouse Becomes More Critical of You Without Provocation – Oftentimes, cheaters need to justify or legitimize why they are cheating to overcome their guilt. In other words, they feel better if they can convince themselves that you “drove” them out of the marriage. So, it is not uncommon for a cheater to start looking for faults in your relationship and to become increasing critical of you.
  • Your Spouse Accuses You of Cheating – This form of projection is more common than you might think. Essentially, by accusing you of cheating, your spouse is trying to throw you “off balance” by shifting all of the focus and attention away from themselves and on to you. Also,  they can use these false accusations and a justification for needing “space” which allows them more time to cheat.

There may be innocent explanations for your spouse’s changes in behavior. Your spouse may be on a health kick. Your spouse may feel insecure about themselves and therefore they are less intimate. Your spouse may be suffering from depression and that is why they no longer plan for the future. Standing alone, many of these behaviors do not necessarily mean your spouse is cheating. However, when you see a combination of these behaviors, then it becomes more probable that your spouse is cheating on you.

What To Do If You Suspect Your Spouse is Cheating in South Carolina?

We strongly recommend consulting with one of our divorce attorneys in Charleston. We 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 on 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 to 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.

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