How to Prove Adultery for Divorce in South Carolina

By Valerie Stevens

Adultery is considered a criminal offense against morality and decency under South Carolina law and can be punished by a fine of up to $500 or six months in jail. It is rarely prosecuted, but adultery is frequently used as grounds for divorce in family court. The state Code of Laws defines adultery as two people having sex or living together when at least one of them is married to someone else. According to case law, you do not have to prove your spouse has sexual intercourse with another person; however, you must prove that he had inclination and opportunity.

Adultery is considered a criminal offense against morality and decency under South Carolina law and can be punished by a fine of up to $500 or six months in jail. It is rarely prosecuted, but adultery is frequently used as grounds for divorce in family court. The state Code of Laws defines adultery as two people having sex or living together when at least one of them is married to someone else. According to case law, you do not have to prove your spouse has sexual intercourse with another person; however, you must prove that he had inclination and opportunity.

Elements of Adultery

What constitutes adultery under South Carolina law is open to debate. State law says that the two people involved in the adulterous act must engage in carnal intercourse, but state courts have interpreted this to mean sleeping together or frequent meetings that are intimate in nature. The South Carolina Court of Appeals has ruled that intercourse is not necessary and sexual intimacy is enough, in some cases. Homosexual acts can also be the basis for a claim of adultery. South Carolina family courts use a two-pronged test to rule on allegations of adultery. You must show that your spouse was inclined to be unfaithful and that he had the opportunity to do so.

Divorce is never easy, but we can help. Learn More

Motive

The first element you must prove to establish adultery in a divorce case is inclination, or motive. You must prove that your spouse was inclined to have sex with her adulterous partner by providing evidence of sexual desire between them. In some cases, explicit love letters, emails, texts or Internet posts can provide all the evidence you need. Telephone records and credit card statements also might provide proof. Eye witness accounts of your wife and her lover kissing or holding hands usually will satisfy the first part of the test.

Opportunity

The second element in the two-pronged test is opportunity. To provide evidence that your husband had the opportunity to commit adultery, you must show that he was alone with his lover in a private place for a sufficient period of time to consummate their affair. If you can prove your husband spent time with another woman alone at a friend’s house, for example, you probably have shown opportunity. However, the court will not accept vague accusations of opportunity; the proof must be “sufficiently definite to establish the place and time.” In other words, you need to be able to prove that they were alone for a definite amount of time on a certain date. If a private investigator sees your husband park his car at his girlfriend’s house at 9 a.m. and the car remains parked there until 3 a.m., you usually have proof of opportunity.

Evidence

Because adultery is a private act by its very nature, South Carolina courts allow circumstantial evidence to prove adultery. You do not have to provide eye witness testimony to the sexual encounter. Many times friends will provide written statements or testify in court about the details of your wife’s affair. Photographs and records of explicit communications between her and her lover can also be presented to the judge. Most attorneys will advise clients not to follow their spouses themselves, however. Any type of amateur surveillance could lead to trouble because of South Carolina privacy laws. In some cases, you might consider hiring a licensed and bonded private investigator to help you prove adultery.

Divorce is never easy, but we can help. Learn More
Definition of Adultery Pertaining to Divorce

References

Related articles

Adultery & Divorce in Georgia

If your spouse engages in an extramarital affair and you want to sue her for divorce because of it, you might be more successful if you don’t live in Georgia. The state’s laws regarding adultery are somewhat restrictive, and proving your spouse’s indiscretion might be difficult as well. If you’re successful, however, it can have a significant impact on the outcome of your divorce.

How to Prove Desertion in a Divorce

If your spouse walked out on you, and if you want to base your divorce case on his wrongdoing, you may attempt to prove it during the divorce proceedings, unless you live in a state that does not recognize any fault grounds. There are much easier ways to get a divorce than by proving desertion, however. All states have provisions for no-fault grounds, which rarely require that you prove any wrongdoing.

Laws About Adultery & Abandonment

Adultery and abandonment are two common issues that can cause a marriage to end in divorce. Although all states will grant a divorce based on irreconcilable differences and other no-fault grounds, a spouse can also elect to show the other guilty of being at fault for the divorce. Proving adultery or abandonment can also speed up the divorce process without the need for a lengthy separation especially if your spouse admits being at fault.

Get Divorced Online

Related articles

Can a Lover Be Forced to Testify at a Divorce if the Affair Is Known?

As a general rule, if someone has an affair with a married individual, she should brace herself for an appearance in ...

What Constitutes Adultery in an Ohio Divorce?

Almost half of all states no longer recognize adultery as an acceptable ground for divorce, but Ohio isn’t one of ...

New York State Divorce Laws When a Spouse Has an Affair

Until 1967, adultery was the only grounds for divorce recognized by New York. The state’s code defines it as ...

How to Prove At-Fault Divorce in Pennsylvania

Fault-based divorces are somewhat rare in Pennsylvania, especially since the state legislature amended Pennsylvania's ...

Browse by category