A 2013 study found that in over 40 percent of marriages, one or both spouses admit to having had at least one affair. The study also found that most of these marriages end in divorce. In some states, adultery affects an unfaithful spouse’s right to alimony and can affect property division in a divorce. In other states, divorce courts don't consider adultery at all.
This article will explain how adultery affects spouse’s rights to alimony and property division in South Carolina. If you have additional questions about the rights of an unfaithful spouse in a South Carolina divorce, you should contact a local family law attorney.
South Carolina law defines adultery as intercourse between a married person and someone other than that person’s spouse. Adultery is one of the legal grounds for a "fault-based" divorce in South Carolina. In a fault divorce, one spouse's bad conduct, such as cheating, must be alleged and proven in order to obtain a divorce.
South Carolina courts will consider evidence of adultery in a divorce proceeding, unless both parties cheated or one spouse condoned (consented to) the other spouse's affair. While adultery typically does not affect property division or child custody, it does have an impact on alimony.
South Carolina has several types of alimony. “Pendente lite” alimony is temporary financial support paid to a supported spouse during the divorce case itself. “Periodic alimony” is paid in monthly installments, lasting until either spouse dies, the supported spouse remarries, or either spouses' financial circumstances change. “Lump-sum alimony” is a certain amount of alimony made in one or more installments, which may be in the form of cash or property.
“Rehabilitative alimony” may be periodic or in a lump-sum, but is awarded when the court wants to give a supported spouse some time to complete job training or education and become self-sufficient. “Reimbursement alimony” is awarded when the court believes one spouse should reimburse the other for things paid for during the marriage, such as an education or job training. “Separate maintenance” is alimony paid when the spouses don’t get divorced, but live separate and apart while one spouse still needs financial help from the other.
South Carolina courts consider the following factors when determining whether to award alimony:
South Carolina courts can always change an alimony award if the financial circumstances of either spouse changes. Courts may also require the paying spouse to buy life insurance to secure future alimony payments. For more details on alimony in South Carolina, read Understanding and Calculating Alimony in South Carolina.
A spouse who commits adultery in South Carolina isn’t eligible to receive alimony. The only exception is if the faithful spouse condoned the adultery, meaning knew about and allowed the affair.
Compared to other states, South Carolina is very strict about preventing an unfaithful spouse from receiving alimony. A spouse who otherwise needs financial support can be barred from alimony if there is clear and convincing proof of the infidelity.
Also unlike many other states, in South Carolina, spouses that live separately while their divorce is pending can’t have sexual intercourse with other people until the divorce or formal separation is final. Proof of sexual relations before a final divorce or separation will prevent the "unfaithful" soon-to-be-ex spouse from receiving any future alimony.
You don’t need direct proof of your spouse’s adultery; you can prove this with circumstantial evidence. For example, a South Carolina court found that adultery was proven when a wife admitted that she secretly met with another man (not her husband) in a parking lot and engaged in sexual activities with him several times during the marriage.
Although adulterers can't receive alimony in South Carolina, courts don’t generally consider adultery when dividing a couple’s property. The only exception to this rule is when a spouse spends a significant amount of the couple’s money on an affair, for example, if a spouse used marital funds or income to buy a car, a house or expensive gifts or jewelry for a lover. In such cases, the court may award the guilty spouse less property in an effort to reimburse the innocent one. Otherwise, a court isn't going to reduce a cheating spouse's share of the property simply to slap his or her wrists.
South Carolina courts don’t consider adultery when deciding child custody or visitation.
If you have additional questions about how adultery affects your rights during a divorce in South Carolina, you should speak with an experienced family law attorney in your area.
To read the full text of the law on alimony in South Carolina, see the South Carolina Code of Laws §20-3-130.