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. So how do you prove adultery in South Carolina, and what happens once you do?

Quick Answer: In South Carolina, you prove adultery by showing, by a clear preponderance of the evidence, that your spouse had both the inclination and the opportunity to commit adultery. Direct proof of sexual activity is not required, and circumstantial evidence such as private investigator surveillance, messages, and hotel records can be enough when considered together. Adultery can bar the cheating spouse from receiving alimony and can affect property division and sometimes custody.

How Do You Prove Adultery in South Carolina?

Under South Carolina law, Section 16-15-70 defines criminal adultery 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.” The definition of adultery applied in divorce cases is broader. 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.” The proof must establish adultery by a clear preponderance of the evidence.

1. Inclination to Commit Adultery – People are entitled to have friends, regardless of 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 disposition, to cheat. Proving inclination may be done through “love letters,” texts, or emails that show the romantic nature of the relationship, or by showing membership in online dating or matchmaking services.

Another example is a private investigator obtaining photographs of the two people holding hands while together or kissing as they say goodbye. Occasionally, we see a situation where one of them 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 can be proof of an inclination to commit adultery.

2. Opportunity to Commit Adultery – To prove “opportunity,” you must show that the spouse and the other person had a realistic opportunity to engage in sexual activity. There is no black-and-white rule as to what exactly we need to show. The best evidence of an opportunity often comes from a private investigator obtaining surveillance footage or photographs of the two people spending time alone together in a 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 engage in extramarital sexual activity 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.

The following table shows common types of evidence in adultery cases and what each one usually helps prove:

Who Must Prove Adultery in South Carolina?

If you are the spouse who initiates a divorce on the ground of adultery, then you are the person who must prove your spouse committed adultery, and you must prove it by a clear preponderance of the evidence.

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

Although the criminal statute’s definition of adultery includes “intercourse,” that definition does not control divorce cases. 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 cabin on a cruise, and later a hotel room with another man, and other evidence showed a disposition to engage in sexual activity. 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 not defined every sexual act that may constitute adultery. For example, South Carolina’s Supreme Court found that same-sex sexual activity can constitute adultery. The courts have also rejected the argument that intercourse is required; sexual intimacy can be enough. An earlier court declined to decide whether a single act of oral sex constituted adultery because the spouse had condoned the act. Because the actual sexual act is rarely proved, circumstantial evidence of inclination and opportunity often decides the issue.

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

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

Is Sexting Considered Adultery in South Carolina?

No, sexting by itself is not adultery in South Carolina. Adultery requires extramarital sexual activity, and exchanging sexually explicit messages, photos, or videos with someone other than your spouse, without more, does not meet that definition. However, sexting can still hurt the spouse who does it.

Sexually explicit messages can be strong evidence of inclination, one of the two elements needed to prove adultery through circumstantial evidence, and when they are combined with evidence of opportunity, such as the two people spending the night together, a family court may find that adultery occurred. Sexting may also be considered as marital misconduct in decisions about alimony and property division if it affected the parties’ economic circumstances or contributed to the breakup of the marriage, subject to the applicable statutory cutoff for considering misconduct.

Courts may consider it in custody decisions if it affects the children’s best interests. These messages often come up in discovery. Be careful how you obtain them: reading or copying messages from your spouse’s phone or accounts without authorization can create legal problems. And if sexting involves sexually explicit images of a minor, it can be a serious crime.

Is There a Punishment for Adultery in South Carolina?

Some clients ask us questions such as “Can you go to jail for adultery in South Carolina?” South Carolina still has a criminal adultery statute. It provides for a fine of $100 to $500, imprisonment for six months to one year, or both, upon conviction. That criminal statute is distinct from the rules governing adultery in divorce cases. We cannot say that prosecution is impossible, but adultery can also have significant consequences in a divorce:

1. Denial of Alimony – If a spouse commits adultery before the statutory cutoff, that spouse is “barred” (prevented) from receiving alimony from the other spouse, unless the adultery was condoned. The bar does not apply to adultery that occurs after the earlier of (1) the formal signing of a written property or marital settlement agreement or (2) the entry of a permanent order of separate maintenance and support or a permanent order approving a property or marital settlement agreement. A separation or a temporary order by itself does not end the risk.

2. Payment of Alimony – If you commit adultery and your spouse seeks alimony from 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 factor is “marital misconduct or fault” if it affected the parties’ economic circumstances or contributed to the breakup of the marriage.

The court may take the supporting party’s adultery into account in deciding a fair and equitable amount of alimony, but an increase is not automatic. The statute also limits consideration of misconduct occurring after the formal signing of a written property or marital settlement agreement or entry of a qualifying permanent order, whichever occurs first.

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, evidence of how one parent’s conduct affects the child may matter.

A parent’s conduct may be considered insofar as it bears on the child’s best interests. Adultery alone does not establish that a parent is unfit. If you expose your child to your new love interest, especially overnight, a family court judge may consider whether that exposure affects the child’s welfare.

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 factor 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 can count as “marital misconduct or fault.” So, a party guilty of adultery may have their share of the marital estate reduced because of the adultery, but fault cannot be used to impose a punitive division. Remember that “marital misconduct or fault” is only one of many factors the court may consider.

Conduct occurring after entry of a temporary order, formal signing of a written property or marital settlement agreement, or entry of a qualifying permanent order—whichever occurs first—cannot be considered as fault under this factor. In some cases, adultery does not make a massive difference in the division of the marital estate. In others, it may make a significant 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 should consider (1) the parties’ ability to pay their own fees, (2) the beneficial results obtained by counsel, (3) the respective financial conditions of the parties, and (4) 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 should 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 a party’s fault in causing the divorce is not a factor when awarding fees. However, the statute authorizing attorney’s fees permits the court to consider the parties’ financial resources and marital fault. If a party denies the adultery and forces the other spouse to go through the expense of proving it, a family court may consider whether to award reasonable fees and investigation costs under the applicable factors; such an award is not automatic.

We’ve seen family court judges order payment of reasonable private investigator’s costs incurred to obtain evidence, even if the investigation occurred before the case was filed. The court must base any award on the applicable law and evidence, not simply penalize a spouse for cheating.

The following table summarizes how adultery can affect a South Carolina divorce:

What is Condonation of Adultery in South Carolina?

Some clients ask us whether there is a statute of limitations on adultery in SC. The short answer is that there is no specific statute of limitations for adultery as a divorce ground. 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 that adultery.

Condonation can be shown in a number of ways, such as resuming sexual relations, continuing to reside together as spouses, or sending letters or emails expressing forgiveness. 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 you forgave the adultery.

In South Carolina, condonation means “forgiveness, express or implied, by one spouse for a breach of marital duty by the other” on the condition that the misconduct will not be repeated. Generally, proving it requires evidence of reconciliation, which implies the husband and wife normally cohabited in the family home.

If the injured party knows of the misconduct and the couple resumes or continues living together as spouses for “any considerable period of time,” that conduct strongly supports an inference of forgiveness or condonation. 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 and for the sake of their child, without resuming normal marital cohabitation.

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, continued marital cohabitation for approximately five (5) months supported findings of condonation in two South Carolina cases. The time period alone does not decide the issue.

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 couple’s relationship appeared strained during that time, 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 alleged adultery when the couple continued to live together and voluntarily engage in sexual relations for approximately five months.

Two nights of staying together, without more, may not establish condonation. In one 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, a couple continued to maintain separate bedrooms after the wife admitted adultery, attempted marriage counseling twice, and lived together for 14 months after her admission. The parties disputed the extent of their sexual relations. Although the family court judge found that there was insufficient evidence of condonation, our appellate court disagreed and found that the evidence, including the continued cohabitation and a reconciliation-focused email, showed that the husband forgave the wife for her adultery.

Another defense is recrimination. If both spouses committed adultery, neither spouse may be able to get a divorce on the ground of adultery, although a divorce based on one year of separation is still available. Recrimination does not, by itself, remove the statutory alimony bar for a spouse whose adultery was not condoned.

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.”

Under Section 16-15-60, a person convicted of criminal adultery or fornication may be fined $100 to $500, imprisoned for six months to one year, or both, at the court’s discretion. We cannot say that prosecution is impossible; the statute remains in effect. The criminal definition is narrower than the definition applied in divorce cases.

What Are Some Signs 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 every case is unique, here are some of the “classic signs” that we’ve seen in our cases that suggest your spouse may be cheating on you:

• Your Spouse is Unavailable – Cheaters need time and privacy to cheat. If your spouse starts “dropping off the radar” for extended periods, 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 in their spouse’s presence. However, if your spouse becomes increasingly protective about their phone, or is taking 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 continuously talk about the future, such as upcoming evenings out, holidays, travel plans, etc. Some of these discussions go deeper, such as plans to move, remodel a home, or plan for retirement. However, when these conversations stop, it may signal that your spouse is no longer thinking about the future with you because they are making plans with someone else.
• Sudden, Unexplained Expenses – For many cheaters, entertaining and spending time with a new love interest comes at a cost. Although some cheaters make the mistake of putting charges (such as dinners out, hotel rooms, etc.) on credit cards, most cheaters are too savvy to use a credit card. Instead, they may start making 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, this may be a sign they’re cheating.
• 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, like people you get together with for holidays, dinners, evenings out, etc. If your spouse’s friends start giving you the cold shoulder or distancing themselves from you, it may be because they feel awkward being around you, knowing you are being cheated on.
• Your Spouse is More Interested in Their 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 factors like being unavailable or a lack of intimacy, this new interest may signal that your spouse is cheating on you.
• Your Spouse Can’t Keep Their Story Straight – Cheating involves lying and deception. Lying and deception involve 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 notice things don’t add up, and your spouse often becomes angry or defensive when you ask questions, these may be signs 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 increasingly 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 onto you. They can also use these false accusations to justify needing “space,” which gives them more time to cheat.

Your spouse’s changes in behavior may have innocent explanations. Your spouse may be on a health kick. Your spouse may feel insecure about themselves and therefore be 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, you may have more reason to investigate; the behaviors alone do not prove adultery.

How Long Does a Divorce Based on Adultery Take in South Carolina?

A divorce on the ground of adultery can be faster than a no-fault divorce. Under S.C. Code Section 20-3-80, the family court cannot grant a final divorce on the ground of adultery until at least three months after the complaint is filed, compared with the one year of continuous separation required for a no-fault divorce.

A hearing on an adultery-ground divorce also cannot be held before two months after filing. Contested adultery cases often take longer because of discovery and trial, but you do not have to wait a year to file. You can learn more about the other grounds for divorce in South Carolina in our separate article.

Can Gathering Evidence of Adultery Get You in Trouble in South Carolina?

Yes. Hiring a licensed private investigator is usually the safest way to gather evidence, but even an investigator cannot break the law. Placing a GPS tracker on your spouse’s vehicle without authorization may create legal risks that depend on ownership, consent, where the device is placed, any court orders, and how the tracking is used.

Secretly intercepting your spouse’s calls or messages when you are not a party to them and no party has consented, or accessing your spouse’s phone, email, or social media accounts without authorization, can expose you to criminal charges or civil liability; unlawfully obtained evidence may also face admissibility challenges. Knowing your spouse’s passcode or being married does not by itself give you permission to access their private accounts. Talk to a lawyer before you try to gather evidence yourself.

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 have experience handling 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 a computer you are authorized to access examined by a forensic computer expert to look for photos, emails, and web history that can be lawfully examined. We can refer you to one of these too. We may try to track down witnesses. Depending on your case, there may be other lawful ways to discover what you are looking for and gather evidence for court. We have seen these situations many times, while hopefully, you have not.