The Definition of Adultery in South Carolina
Adultery, as defined by the Code of Laws of South Carolina, is, for all intents and purposes, the same thing that one would expect it to be. It is an act in which someone who is married engages in sexual relations with someone who is not their spouse, thereby committing a breach of the marital contract. It is loosely defined as sexual intercourse between one party who is married to another and someone who is not, in which the married person has the intent to be unfaithful to the spouse.
While most people think of adultery as being a sexual act , it is necessary under state law for adultery to be an act of sexual intercourse or a sexual act. This provision for the necessity of sexual intercourse for adultery to be proven means that this type of conduct cannot be used for some purposes, such as in divorce cases, but can be utilized when it comes to proving tort of spouses against third parties to establish potential remedies such as punitive damages and alienation claims.
The Legal Effects of Committing Adulty
The legal consequences of adultery in South Carolina can significantly impact divorce proceedings. While the grounds for adultery are strictly limited to circumstances that are evidence of the fault of a spouse, the effect adultery may have on a contested divorce proceeding cannot be ignored. In the context of an action for divorce on the ground of adultery, the Court must consider "marital misconduct," which is defined as "adultery or desertion". (S.C. Code Ann. Section 20-3-170) Marital misconduct is not just relevant to divorce actions based on adultery but it also comes into play when either party in any type of divorce proceeding requests an award of alimony, and also when the equitable division of marital property is at issue. Under the law an award of alimony will not be made if it is determined that the marriage was entered into by the guilty party under circumstances involving adultery. (S.C. Code Ann. Section 20-3-130(3)) Since adultery is an absolute bar to alimony, the question must be asked: whether a consensual affair will bar the spouse contemplating divorce from receiving an award of alimony. The answer is no, as a consensual affair will not bar the non-offending spouse from receiving an award of alimony.
The equitable division of marital property will likewise not be awarded to a party whose rights to the property are the result of marital misconduct. To this end, Chapter 25 of Title 20 includes a list of factors which are to be considered by the Court in the equitable division of marital property. Among these factors are the "marital misconduct … of both or either spouse." As the following quote illustrates, South Carolina case law provides limited guidance regarding the consideration of marital fault as a factor in the equitable division of marital property:
It is true that this section [(S.C. Code Section 20-3-210)] of the statute provides for the consideration of the marital misconduct of the "both or either spouse." … However, this does not mean that alimony, child support and equitable division of property may be modified based upon marital fault where a court has retained jurisdiction to do so pursuant to a written agreement or prior court order. An award of alimony, child support or equitable division of property is a judicial decree based on the facts and circumstances existing at the time it is made. If a court lacked the authority to consider marital fault when fashioning that decree, that subject cannot later be injected into the proceedings. The fact that the legislature has authorized a court to consider marital fault in modifying alimony, child support and equitable division of property does not authorize it to consider the issue where a judicial decree has been made and the court’s power to alter it has not been expanded by prior legislative enactment.
As the preceding discussion of the legal consequences of adultery reveals, there exist provisions in South Carolina divorce law which establish an "absolute" bar to alimony where adultery is established, and also contain general references to marital misconduct (adultery being one form thereof) which may be considered by the Court as a "factor" in deciding whether alimony should be awarded, and if so, the amount thereof, and likewise is a "factor" to consider in equitable division cases. The problem arises in the fact that the intent of the General Assembly in the latter two areas is unclear. Examination of the language in S.C. Code Section 20-3-170 suggests that marital misconduct is not a factor for the Court’s consideration. Examination of the language in S.C. Code Section 20-3-130(3) appears to say that marital misconduct is a factor, but that it is not a factor upon which an award of alimony will be made to the guilty party. South Carolina case law is ambiguous in this regard neither clearly stating whether either scenario would be applicable. In sum, while adultery will always bar an award of alimony to the offending spouse, adultery cannot be relied upon to bar other monetary claims such as a claim to equitable division of marital property.
Proving Adultery in a Court of Law
In connection with the granting of a divorce based on adultery, the Court must also make a finding as to proof of adultery. Proof of adultery can come from a number of sources and the trial courts in South Carolina have a broad range of leeway in what can be considered as sufficient proof.
The province of proof is governed by common law, and so long as the Court has some evidence any such evidence may be considered under the standard of the "more likely than not" test. The Supreme Court has stated as follows: We hold that the requirements for proving adultery are: (1) opportunity; (2) disposition; and (3) overt act. Campbell v. Campbell, 320 S.C. 11, 463 S.E.2d 598 (1995); McMillan v. McMillan, 319 S.C. 257, 260, 460 S.E.2d 306, 308 (1995) (the requirements have been that the adultery must be established by the testimony of a credible witness or by other corroborating circumstances or evidence or that the direct evidence of the opposing party be found unworthy of belief). The Defendant does not have to testify that adultery occurred in order for adulterous conduct to be proven. As alluded to above, the Court may consider the testimony of both non-interested witnesses and interested witnesses (including the parties themselves) as being "probative of the issue of adultery." Campbell v. Campbell, supra. The court may also consider circumstantial evidence. Indeed, in McMillan v. McMillan, 307 S.C. 288, 294-295, 414 S.E.2d 142, 146 (1992), the court opined that the following actions were inconsistent with marital fidelity: contacts with the paramour’s home, including the answering of a call, lack of reasonable explanation for the calls, and asserting that the wife was not at home, secretive behavior regarding appointments and visits, statements from the spouse that he was cheating and "having all kinds of women," and the renting of a motel room for a paramour. The Court in McMillan concluded that this evidence was circumstantial and "greater in quantity and quality than that in prior cases… the evidence tended to prove that [the husband] had an affair and was definitely inconsistent with his asserted conduct." In Graham v. Graham, 305 S.C. 528, 535, 409 S.E.2d 802, 806 (1991), the Court declined to address the issue of whether specific evidence was sufficient to sustain an adultery finding. However, the Graham court observed "that circumstantial evidence and the acts of civil or criminal contempt of court may be sufficient to give rise to a rational inference finding adultery." In Skaggs, the trial judge found Defendant’s testimony not credible. In contrast, the complaint alleged that he and his paramour resided together in a home owned by either or both of them or the home was owned by his paramour. This allegation was denied by Defendant and Plaintiff offered no supporting evidence. The trial judge implicitly found this allegation as lacking in credibility. Defendant testified that he did not live with his paramour and that he and his paramour did not reside together because he could not afford to own or rent a house at the time. Moreover, the trial judge may have found the Defendant’s testimony credible.
How the Court Considers Adultery in Child Custody Arrangements
The court in Without Limits, LLC v. Collins, 388 S.C. 637, 699 S.E.2d 719 (Ct. App. 2010) explained: The factors the [economic] factors focus on generally relate to claims for alimony. Because [South Carolina Code Section] 20-3-160(A)(1) only provides for alimony upon a finding of marital fault, we issued a writ of certiorari to examine whether marital fault, such as adultery, is a permissible factor in a divorce action absent a grant of alimony. We remain aware, however, that the issues raised by the parties can be resolved under our manifest injustice jurisdiction. We grant certiorari and now reverse and remand with instructions.
Our holding that marital fault can be a permissible factor in a divorce action absent a grant of alimony does not, however, change the outcome here. In this divorce case , the trial court cited Plaintiff’s adultery as a factor in dividing the property. This was error; in ordering an unequal division of marital property absent a grant of alimony or a finding of economic misconduct, the trial court may only consider the factors set forth ins[outh Carolina Code Section] 20-3-620, whether or not a divorce is granted on fault grounds.
Divorce Action Utilizing Adultery and Child Custody Adultery will be considered by the court in determining the custody and visitation of children. An applicant’s illicit sexual conduct, whether it occurs outside of the marital home or within it, amounts to marital misconduct which detracts from the applicant’s moral fitness and may therefore constitute a basis for denying or limiting custody or visitation.
Defenses Against Adultery Allegations
A person accused of adultery can defend against the claim by making one of four arguments, which turn on whether that person is married at the time of the alleged adultery. If a married person engages in sexual intercourse with another person, the plaintiff must prove (1) the fact of adultery; and (2) the defendant’s knowledge that he was or was not married to the other person. However, if the person being accused is unmarried, the latter element is moot. For instance, the South Carolina Supreme Court denied a divorce to a wife who sought to prove the adultery of her husband with a person who he married after his first marriage to the wife was declared invalid by a Louisiana court. Because his marriage to the other woman was void—i.e., that other woman was never his wife—his conduct did not constitute adultery within the meaning of the statute.
Even if the defendant in such circumstances is married to both the alleged adulterer and the alleged adulteress, the adultery claim will not be successful. The defendant in such a scenario must show that the plaintiff committed "cassation of the marriage bond" by showing "the existence of a legal marriage at the time the [adulterous] act was committed," and "[a]n attempt to form a second marriage while continuing the first is insufficient to accomplish this objective." Thus, in such a situation, defendant cannot satisfy his or her burden of proof under the law, so can’t prevail.
It’s unclear what concessions may be made by the alleged adulterer or adulteress that would suffice to establish the first element of the adultery claim—that the adultery occurred. Two situations seem to confront the law in that regard: (1) the case in which no corroborating evidence is produced but the adulterer or adulteress makes an unequivocal statement admitting to the act; and (2) the case in which corroborating evidence is produced but the adulterer or adulteress never admits to the act.
In the first scenario, the court reasoned that "[t]o hold otherwise would encourage further and possibly unlawful statements" and the defendant could not be penalized for failing to admit the undeniable truth. In the second scenario, the court held that "it is wrong to accuse that, which there is no evidence that plaintiff did." It remains to be seen how the courts will resolve these matters when they arise.
Divorcing for Adultery
Filing for divorce in South Carolina on the grounds of adultery requires specific language to be added in the complaint (the document the spouse serves you to get the ball rolling). Noted in S.C. Code Section 20-3-5, there are two specific pieces of language that must be included in the complaint: "Upon information and belief, the Defendant committed adultery on or about the day of, ____ ____2011, at ____Heathchanson Circle, Apt. # ◊, , Charleston, South Carolina, but not limited to this date." And, "Upon information and belief, Defendant had sexual intercourse with one or more persons without an attempt at concealment so that the act was so open and notorious as to inform the Plaintiff that he had abandoned cohabitation, and with one or more persons with knowledge or goodwill that he was married and with an intent to bring about the dissolution of his marriage."
The procedure for obtaining a divorce on the grounds of adultery is no different than any other ground for divorce in South Carolina . Adultery is a fault ground for divorce and there are specific statutory timeframes that must be met. These timeframes are noted in S.C. Code Section 20-3-80. That section notes that a divorce action must not be held until at least one year after service of the complaint upon the defendant if the parties have lived together the year prior to the filing of the action, unless the defendant has lived separate and apart for three months. If the parties did not live together the year prior to service, but lived together during the three months prior to the service of the complaint, the action must not be held until three months after service of the complaint. If the parties never lived together, or if they have lived separate and apart for more than a year, the divorce action may, at any time after the complaint is served upon the defendant be held. Also noted in Section 20-3-80 is the fact that, "upon notice to the court made at the time of the filing of the plaintiff’s complaint or at any time thereafter, the plaintiff may demand a jury trial."