Adultery is one of the legal grounds available for obtaining a fault-based or at-fault divorce in South Carolina. An at-fault divorce can be obtained much faster than the 12 months required for a no-fault divorce in South Carolina.
An allegation of adultery affects a divorce case in several ways, including when either spouse seeks alimony, during division of marital property and when determining child custody and visitation rights. For adultery to affect a divorce case, the aggrieved spouse must be able to prove the allegations of adultery to the satisfaction of the South Carolina court.
Deciding to split from your spouse and seek a divorce is usually a difficult decision. If one partner in the marriage has been unfaithful, emotions are bound to run high. The divorce lawyers at McKinney, Tucker & Lemel LLC in Rock Hill, SC, help prepare you for the challenges of separation and divorce involving adultery and help you formulate a strategy that protects your interests and ability to start over.
What is Adultery Under South Carolina Law?
Adultery is engaging in sexual intercourse with a person while lawfully married to someone else. According to South Carolina law (SC Code § 16-15-70 (2012)), adultery requires the individuals to live together and engage in carnal intercourse or, if not living together, engage in habitual carnal intercourse with each other.
South Carolina law (SC Code § 20-3-10 (2012) provides that a divorce may be granted on the basis of:
- Desertion for a year or longer
- Physical cruelty (abuse)
- Habitual drunkenness or drug use, or
- The couple having lived apart for at least one year and filing for a divorce.
The latter, divorce following separation for at least a year, is no-fault divorce in South Carolina. Adultery and the others are grounds for an at-fault divorce.
South Carolina Prohibits Alimony After Adultery
The most significant impact of adultery on a divorce agreement in South Carolina is that it may prevent the unfaithful spouse from receiving alimony or support as part of the divorce agreement. Under S.C. law (SC Code § 20-3-130 (2012)), this includes adultery that occurs before a formal separation agreement is signed.
This is a strict measure that should be kept in mind. Many couples separate and date others before a formal separation agreement is in place. But without an understanding between the two of you, this could prove costly in a contested divorce. Dating without a formal separation agreement in place could preclude you from obtaining alimony.
However, to stop you from obtaining alimony for adultery, the other spouse must be able to prove the infidelity. Spouses going through an agreed-upon separation can waive or ignore this provision.
Finally, the court will waive the prohibition if it is shown that the faithful spouse knew about and did not contest the other’s affair. This latter scenario might come up, for example, when an amicable separation has turned sour.
Additional Impact of Adultery on Separation and Divorce in SC
When cheating on a faithful spouse is at the heart of a divorce, it can cause issues in several ways. Before a judge grants your divorce, he or she must approve your separation agreement.
In a best-case scenario, the estranged spouses and their respective divorce attorneys work out a separation agreement that both parties endorse when it goes before the judge. The judge may make a cursory review of the agreement but will mostly take the spouses’ and attorneys’ word that it is equitable and will approve the separation agreement.
If there is a dispute, however, the judge must make decisions about the contents of the separation agreement.
Two of the costliest factors in most separation agreements are the division of property and spousal support, which a non-cheating spouse may seek. In making decisions in a disputed divorce, the judge must weigh the factor of marital misconduct or fault of either or both parties, which certainly includes adultery.
A third issue the judge may decide in a contested divorce is child custody and visitation. Among many factors that go into deciding what is best for the child or children in a divorce is each parent’s morality.
Issues that might work against the unfaithful spouse would include:
- Having spent a great amount of money on the extramarital affair. This might affect court decisions about what is fair and equitable regarding division or assets or alimony.
- Use of a family home to conduct the affair, such as a vacation home. The aggrieved spouse might insist upon selling the tainted property.
- A large age difference, such as an older man with a much younger woman. This could be held up as a moral reason to limit child visitation.
- Lack of discretion in the conduct of the affair. Behavior seen as intentionally cruel and/or humiliating could affect a judge’s feelings toward either spouse.
Adultery is neither new nor shocking to a South Carolina judge presiding over family court. But decisions before a judge come down to persuasion. How a judge applies one spouses’ adultery to the details of a separation agreement may depend on the circumstances and how they are presented by each spouse’s lawyers.
If adultery is an issue in your divorce, the divorce attorneys of McKinney, Tucker & Lemel LLC can help by understanding your needs and applying our decades of divorce law experience to seeking the best possible outcome for you.
Let Our Rock Hill Divorce Lawyers Help You
Our divorce lawyers at McKinney, Tucker & Lemel LLC can offer 45 years of combined experience helping clients like you through the emotional and legal issues of separation and divorce. We have dedicated our careers to helping clients work through the difficult decisions involved in the end of a marriage so they are in the best position to make a fresh start. During a turbulent time, you need trusted legal guidance and steadfast support.
Call us today or contact us online to schedule a meeting with one of our skilled Rock Hill divorce attorneys.
After he graduated from the University of South Carolina School of Law in 1987, Jim Tucker joined the law firm of McKinney, Givens & Millar in Rock Hill. He has remained with successor firms at the same location ever since while focusing his practice in the areas of family law and personal injury law. Jim is licensed in South Carolina and North Carolina, and he represents clients in both states at the trial and appellate levels. Jim is also a certified mediator and a highly active member of several state and local legal organizations who once served as President of the York County Bar Association.