How to Prove Adultery for Divorce in South Carolina

By Cindy DeRuyter, J.D.

How to Prove Adultery for Divorce in South Carolina

By Cindy DeRuyter, J.D.

If you want to divorce your spouse in South Carolina on the grounds that he or she was unfaithful, you can do so. While some states have done away with this, South Carolina still offers several fault-based grounds for ending a marriage. When basing the divorce on your spouse's infidelity, there are implications to consider, explained more fully below.

Man photographing a couple

Following these steps may help you prove your case for ending your marriage based on adultery which, in turn, may help speed up your court proceedings.

1. Understand the implications of filing for divorce on the basis of adultery.

Before filing for divorce on the basis of adultery, it is critical to understand the effects of this type of filing on your divorce process and potential outcomes.

First of all, if you successfully show that your spouse committed adultery and there were no valid defenses, as explored below, your spouse is generally not able to collect alimony in your divorce. The judge also usually considers your spouse's unfaithfulness when deciding on how to divide your assets and debts.

While adultery often impacts the cheating spouse's financial situation after the divorce, it does not come into play in decisions about child support. That's because child support is there for the child's needs, not the custodial parent's needs. Adultery does sometimes impact custody decisions, though. For example, if your spouse's adulterous actions negatively impacted your children in some way, the judge may consider that when determining how to award custody and visitation.

When you prove your spouse cheated, the judge may order your spouse to pay your legal fees and court fees related to the divorce.

2. Determine whether your spouse's actions are considered adultery in South Carolina.

Adultery as defined by South Carolina Family Courts simply means that one partner in the marriage had both the desire or inclination to be intimate with someone who was not their spouse and the opportunity to do so.

The inclination standard means proving more than the fact that your spouse had a close friend or spent time alone with another person behind closed doors. It generally involves showing that your spouse had a romantic interest in the other person. After you prove inclination, you also have to show that your spouse had the opportunity to be intimate with the other person.

3. Gather proof of adultery.

To succeed in your case on the grounds that your spouse cheated on you, you need proof of his or her actions. However, you do not have to catch your spouse in the act.

In some cases, a spouse who believes their husband or wife is cheating hires a private investigator to help gather evidence. In other cases, hiring a forensic investigator to evaluate your home computer or locating and interviewing witnesses may help establish your case.

Evidence may come in many forms, including photographs, emails or texts, online social media posts or dating site profiles, or other proof that your spouse wanted to cheat and then was with the other person long enough under circumstances that would allow for committing adultery.

4. Understand valid defenses to adultery as a cause of action in South Carolina divorces.

There are certain actions on your part that your spouse could assert as valid defenses to his or her adultery. If you and your spouse reconciled after you became aware of his or her cheating, or if both of you were unfaithful to each other during your marriage, you may not be able to bar your spouse from receiving alimony based on the grounds that he or she committed adultery.

Obtaining a fault-based divorce in South Carolina on the grounds that your spouse was not faithful may make the divorce process faster so you can move on with the next chapter of your life. Attempting to prove adultery on your own can be tricky; for that reason, many people choose to hire attorneys, investigators, and others to help with the process.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.