Adultery and Divorce in South Carolina

Adultery and Divorce in South Carolina

More often than not, a spouse is not “caught in the act” of adultery. Rather, one spouse may catch glances at their partner’s texts planning to meet when they are not around. Perhaps some mutual friends have even heard rumblings that one spouse is having an affair. Typically, however, the spouse has not actually seen the third party with their own eyes. With only rumors and scattered texts, a spouse may wonder what is sufficient evidence to establish an adultery claim for a fault-based divorce in South Carolina. In this article, we’ll discuss adultery and divorce in South Carolina.

Elements of an Adultery Claim

Under South Carolina law, a spouse needs to prove two elements:

  • That their spouse had a motive to have the affair; and
  • Their spouse had the opportunity to have an affair

One way to establish your spouse has the motive or opportunity to have an affair would be to have a friend testify to their conversations with your spouse about the affair. Another way is if you subpoena your spouse’s text records to show that they set up time to meet with their paramour in private places without you there or planning the affair itself.

The Burden of Proof for Establishing Adultery

The spouse trying to prove adultery in a divorce case has the burden of proving their spouse is committing adultery. Although South Carolina cases are still split on what the actual burden of proof is, many South Carolina courts have said there is a “mixed” burden of proof called “clear preponderance of the evidence.” Specifically, in Gorecki v. Gorecki, the Court of Appeals of South Carolina elaborated that the proof of adultery “must be clear and positive and the infidelity must be established by a clear preponderance of the evidence.”

Does Someone Need to Bear Witness to the Adultery?   

You do not necessarily need someone to be a direct witness to your spouse having an affair. In the case of Prevatte v. Prevatte, the Court of Appeals of South Carolina found that circumstantial evidence is enough to prove adultery given the fact that adultery most often occurs in private. Future court opinions have expounded that since adultery is secret in nature, getting direct evidence is hardly ever possible. This means that a spouse could prove the two elements of motive and opportunity by circumstantial evidence. Further, South Carolina courts have elaborated that evidence of sexual intimacy is enough without actual proof of sexual intercourse.

Get Help With Your Case Today

If you are married and you suspect you may be able to establish an adultery claim, you should hire the experienced Mount Pleasant, South Carolina divorce attorneys at Klok Law Firm LLC. We can help you look at the evidence you have gathered and determine whether you have sufficient proof to establish that your spouse has been unfaithful to you.

Contact us today for a free case review.