Adultery in South Carolina: Does Cheating Affect Alimony?

Find out if an extramarital affair can affect alimony and other issues in a South Carolina divorce.

By , Retired Judge

When you live in South Carolina, you have the option of filing for divorce based on your spouse's adultery. If you can prove that claim, you may be able to stop your spouse from receiving alimony. Adultery could also play a role when a judge is dividing a couple's property or deciding whether to order the cheating spouse to pay alimony.

Adultery as a Ground for Divorce in South Carolina

In South Carolina, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in South Carolina include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (S.C. Code § 20-3-10(1) (2022).)

But you should be aware of the fact that South Carolina law bars granting divorce when the spouses conspired ("colluded") to use adultery as a way to get a divorce, or when the "innocent" spouse knew about or agreed to the infidelity for the purpose of getting divorced. This law effectively prevents couples from trying to get around the state's one-year separation requirement for a no-fault divorce. (S.C. Code §§ 20-3-10(5), 20-3-20 (2022).)

Proving or Defending Adultery Claims in a South Carolina Divorce

If you file for divorce in South Carolina based on your spouse's adultery, you'll need to prove that claim. You don't need to provide direct evidence of the actual sexual encounters. Instead, you may use circumstantial evidence showing an inclination and opportunity to commit adultery. (Hartley v. Hartley, 292 S.C. 245 (Ct. App. 1987).)

Circumstantial evidence could include things like hotel receipts, phone records, emails, texts, and photos. For example, you could show an inclination for adultery with pictures of your spouse kissing someone in public. And you could demonstrate opportunity with witness testimony or video evidence showing your spouse entering an alleged paramour's home in the evening and not leaving until the next morning.

If you're defending yourself against an allegation of adultery as a ground for divorce, you could present evidence that your spouse tacitly accepted your behavior by staying in the relationship after learning about your affair (what's known as the "condonation" defense). Or you could argue that your spouse also committed adultery (the "recrimination" defense).

How Does Adultery Affect Alimony Awards in South Carolina?

A spouse's adultery can affect alimony in a South Carolina divorce in two different ways.

First of all, the state out-and-out prohibits alimony awards to spouses who committed adultery, as long as it happened before:

Besides barring alimony to cheating spouses, South Carolina law also allows judges to consider an adulterous spouse's misconduct when deciding whether to order that spouse to pay alimony to the "innocent spouse," and if so, how much the payments will be and how long they'll last. Here again, the adultery won't be a factor if it happened after one of the events outlined above. Also, the judge will only consider the alimony as one factor among many others spelled out in the law, including the length of the marriage and each spouse's earnings and expenses. (S.C. Code § 20-3-130 (2022).)

Although recrimination is a possible defense to adultery as a ground for divorce, that's not true when it comes to South Carolina's ban on awarding alimony to cheating spouses. So if you committed adultery, the judge may not award you alimony even if your spouse also had an affair. (Spires v. Spires, 373 S.E.2d 698 (S.C. Ct. App.1988).)

Could Adultery Affect Property Division in a South Carolina Divorce?

South Carolina is an "equitable distribution" state. This means judges will divide the couple's property in a way they believe is fair under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean a 50-50 split.

As with alimony, South Carolina law includes the spouses' misconduct on the list of factors that judges must consider when they're deciding on a fair of marital property, as long as the misconduct:

  • contributed to the breakup of the marriage or affected the couple's economic circumstances, and
  • happened before the spouses signed a settlement agreement or the court entered an order in the divorce case.

(S.C. Code § 20-3-620(B) (2022).)

Clearly, misconduct in the form of adultery could contribute to the breakup of a marriage. Even if that wasn't the case, however, it could also affect the couple's economic circumstances if the unfaithful spouse misused or squandered ("dissipated") marital assets to finance the affair, such as by buying lavish gifts, paying for expensive travel, or even providing financial support to a lover. The judge could consider that behavior as one of the factors that go into deciding on a fair property division.

Can Adultery Affect Custody or Child Support in South Carolina?

Decisions about child custody and parenting time (visitation) in South Carolina, as in all states, must be based on what would be in the children's best interests.

Under South Carolina law, judges have a great deal of leeway in deciding what would be in the child's best interest. Although the law provides a list of factors that judges may consider, it allows them to take into account any circumstances they believe could affect the child's well-being. (S.C. Code § 63-15-240(B) (2022).)

Because the judge's focus will be on what's best for the children, a parent's extramarital affair usually won't play a role in custody decisions. Some people might argue that adultery is a moral failing or, at least, shows a lack of judgment. But the real question is whether that affects the adulterer's ability to be a good parent. It probably won't in most cases.

In fact, South Carolina law specifically allows judges to consider how much each parent encourages the continuing relationship between the child and the other parent, as well as any attempt by a parent to involve the child in the couple's disputes. So if your spouse has cheated on you, it's not a good idea to use that as a wedge between your spouse and the kids.

Child support in South Carolina is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the parents' incomes, the number of children being supported, the amount of time the children spend with each parent, and items like the cost of health insurance and work-related childcare. The support payments are meant for the children's needs, not as a reward or punishment for parental behavior. So either parent's adultery wouldn't normally play a role in determining which of them will pay support or the amount of the payments.

Is Adultery a Crime in South Carolina?

Yes. A conviction for adultery carries a fine of $100 to $500 and/or the possibility of imprisonment from six months to a year. (S.C. Code § 16-15-60 (2022).)

South Carolina law defines the crime of adultery as "carnal intercourse" between a man and woman, either of whom is married to someone else. The intercourse must either be habitual or while living with the lover. (S.C. Code § 16-15-70 (2022).)

It's not clear how the law would apply to same-sex relationships, but it's unlikely that prosecutors would charge anyone with criminal adultery these days.

Approaching Divorce After Adultery

Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested ("simple") divorce in South Carolina, which is almost always easier and cheaper than a traditional contested divorce.

Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims and convince a judge that your spouse's adultery should affect decisions about alimony, custody, or property division. (Here are some tips on questions to ask before you hire a divorce lawyer.)

Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.