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 also affect property division in a divorce. In other states, divorce courts don't consider adultery at all.
This article will explain how adultery affects a spouse's rights to alimony and property division in South Carolina. If you have additional questions about an unfaithful spouse's rights in a South Carolina divorce, you should contact a local family law attorney.
Adultery is one of the legal grounds for a "fault-based" divorce in South Carolina. (S.C. Code Ann. § 20-3-10.) In a fault divorce, one spouse must allege and prove that the other spouse is guilty of marital misconduct, such as an affair.
If you'd like a less expensive and less time-consuming divorce trial, you can use the state's no-fault divorce process, which allows you to request a divorce without placing blame on either spouse. (S.C. Code Ann. § 20-3-10 (5).)
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 impacts 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 if either spouse's 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, and the courts award it when the judge believes it is necessary to give a supported spouse some time to complete job training or education and become self-sufficient.
The court may also award "reimbursement alimony" when the judge 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 modify an alimony award if the financial circumstances of either spouse change. 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. (S.C. Code Ann. § 20-3-130 (A).)
Compared to other states, South Carolina is very strict about preventing an unfaithful spouse from receiving alimony. The court can bar a spouse who otherwise needs financial support from receiving alimony if there is clear and convincing proof of infidelity.
Also, unlike many other states, South Carolina spouses that live separately while their divorce is pending can't have sexual intercourse with other people until the court finalizes the divorce or formal separation. 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 adequate evidence of adultery 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, the court may award the guilty spouse less property to reimburse the innocent one. Otherwise, a court will not reduce a cheating spouse's share of the property as punishment for marital misconduct. (S.C. Code Ann. § 20-3-620 (B)(3).)
South Carolina courts don't consider adultery when deciding child support. Judges will only consider a parent's affair in child custody decisions if it did or could harm a child's safety or wellbeing. (S.C. Code Ann. § 63-15-240.) Otherwise, judges will conduct a custody hearing to determine what's in the child's best interest. (S.C. Code Ann. § 63-15-230.)
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.