Laws on Cheating Spouses in South Carolina

By Beverly Bird

Updated October 15, 2018

Black woman and man after quarrel at home


The concept of alimony has been around almost as long as marriage has. Maybe one spouse earns a lot while the other spouse earns not so much. They break up and head for divorce court, and the under-earning spouse expects to be able to continue to live almost as comfortably as when they were married.

It’s an across-the-board scenario that holds true in many cases, but alimony laws are state-specific. Some technical variations exist from jurisdiction to jurisdiction. South Carolina has historically taken a very dim view of adultery. That’s changing somewhat, but the state’s rules for cheating spouses remain some of the harshest in the country.

South Carolina defines adultery as “intercourse between a married person and someone other than that person’s spouse,” but it makes an exception if the spouse appeared to condone the behavior. The condonation clause can make things a little tricky if you know your spouse has cheated but you don’t file for divorce.

The Laws on Cheating Spouses in South Carolina

It used to be that adultery was actually a crime in South Carolina, punishable by a fine of $100 to $500 and from six months to one year in jail. This provision was included in the state’s criminal code, not the domestic relations code, so the definition of adultery was technically a little different. Title 16 of the South Carolina Code of Laws says that for criminal purposes, adultery is “The living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person.”

This law had been on South Carolina’s books since 1880, but the legislature began taking steps to change it in 2016. The state’s General Assembly voted to repeal it, along with other antiquated laws, in January 2017. But adultery provisions in the domestic relations code are still very much alive and well.

On the bright side, South Carolina law does not recognize what are known as “heart balm” torts – civil lawsuits outside divorce court where an injured spouse can sue her spouse’s lover for cash damages for alienation of affection or criminal conversion.

How Can Adultery Be Proven in Court?

It’s not sufficient to just point an accusatory finger in divorce court. The judge won’t nod and say, “Oh, OK.” You must be able to prove that your spouse cheated.

The court recognizes that this can be difficult because adultery typically isn’t carried out on a street corner in full view of the world. South Carolina law therefore provides that you don’t need “direct” proof, such as eyewitness testimony. You can prove your claim based on circumstantial evidence, but your circumstantial evidence must be twofold. It must establish that your spouse had both the “inclination” and an “opportunity” to commit an adulterous act.

So, what exactly does this mean in plain English? Your spouse exhibited behavior that made it clear that he wanted to enter into a romantic or sexual relationship with someone else. Additionally, a circumstance occurred where he could have and probably did do just that. You must establish both. One factor without the other won’t work. Your spouse might have had a bona fide crush on your neighbor, but this alone doesn’t make him an adulterer…unless you can prove that he also disappeared into her home for long stretches of time when she was there alone.

So you don’t have to produce a videotape of, or an eyewitness to, the actual adulterous act or acts, but the burden of proof does fall on you as the accusing party, and proving both inclination and opportunity might not be easy. Text messages and emails might establish inclination, but you might have to hire a private investigator to confirm your spouse’s actions and that he had opportunity. Maybe you can provide receipts or credit card bills showing nights spent in a motel or hotel…but you’ll need something to substantiate his actual actions by a “clear predominance of evidence.”

In other words, the more evidence you have that all tilts one way, the better.

Does Adultery Affect Divorce Settlements?

Divorce settlements aren’t exactly the same thing as court-ordered divorces, and the distinction can matter when it comes to adultery. A divorce settlement is simply an agreement between you and your spouse as to the terms under which you’ll end your marriage. How will property be divided? Who will have custody of the children?

Even if you reach an agreement, the court must approve it and turn it into a court order, officially terminating your marriage by divorce. And, if you don’t agree in a marital settlement agreement, the court will decide these issues for you after a trial.

So, if one spouse has committed adultery, how will this affect court approval of an agreement or the judge’s decisions about these matters at trial? It depends.

First, you might be able to get divorced more quickly if your spouse has cheated, and if you can prove it. That’s because adultery is one of the fault grounds for divorce recognized in South Carolina. Without a fault ground, you and your spouse would have to live separately for one year before you could file for divorce on the state’s no-fault ground. You can file for divorce on grounds of adultery even if the two of you are still residing in the same household.

“Marital misconduct” – insert adultery here – is also a factor a judge can weigh when deciding how to divide marital property in a divorce if you don't reach an agreement and leave the decision to the court. But if you and your spouse agree to a division in a marital settlement agreement, it’s highly unlikely that a judge will refuse to approve it and grant you a divorce simply because one of you has cheated.

He’s not likely to consider it in his decision otherwise, either…with one major exception. When a cheating spouse has used marital money or depleted marital assets while pursuing an affair, this changes things. The court can compensate the innocent spouse for the lost cash or value, shifting property distribution in such a way as to give the innocent spouse a bit more.

Can You Get Alimony if You Commit Adultery?

The situation becomes a bit more ironclad when it comes to alimony.

South Carolina law recognizes several different versions of this type of support. “Pendente lite” alimony is payable while a divorce is pending but before it’s final. Beyond this, alimony might be considered rehabilitative, as reimbursement, or it can be more permanent. Rehabilitative alimony tends to be short-term, payable until a spouse can get on his feet financially and begin supporting himself. Reimbursement alimony might be ordered if one spouse used his own separate funds to put the other spouse through school so she could earn a good living – a judge might consider that he’s entitled to have that money back and make it payable in a period of “alimony” installments.

Otherwise, an award of alimony comes down to several considerations, none of which are controlling. A judge must consider and weigh all of them: the duration of the marriage, the mental and physical health of each spouse, each spouse’s income and the forecast for each income going into the future, how property was divided and the extent of separate, non-marital property that each spouse might own, and whether one spouse is more or less prohibited from working full time because he must care for the parties’ child or children.

Maintaining the standard of living during the marriage is also a primary consideration, at least as much as is possible. Alimony typically is not awarded when spouses were only married for a short period of time or when they both earned about the same, unless one of these other factors exists and weighs heavily.

An adulterous spouse is barred by law from receiving any alimony at all in South Carolina – and remember, it’s still adultery under state law if you’ve broken up and gone your separate ways but you haven’t signed a marital settlement agreement or received a legal separation decree from the court. This is the case even when a spouse literally has no funds or income of his own with which to support himself. If he cheated, he cannot receive alimony. It’s that black and white in South Carolina.

The bar is lifted when the innocent spouse knew about the adultery but did nothing about it – such as not filing for divorce. The cheating spouse can then make a claim that his spouse condoned the affair. In this case, he could still receive alimony if the other factors indicate that it's warranted.

Adultery is considered to be marital misconduct for purposes of alimony awards, as well. This means that technically, a judge can order a cheating spouse to pay alimony or to pay more alimony than she otherwise would have because her actions terminated the innocent spouse’s previous lifestyle.

How Does Adultery Affect Child Custody?

Technically, a South Carolina court can consider issues of adultery and infidelity when deciding child custody matters because each parent’s sense of morality can be taken into the equation. But the state also recognizes that cheating does not necessarily make someone a bad parent, at least not by itself. A judge must award custody based on what is in the best interests of the children involved. Which is the best, healthiest home for them overall?

It’s possible that, if both spouses are considered to be equally good parents – in other words, they’re in a dead heat for custody – committing adultery could be the deciding factor. But otherwise, it’s unlikely to influence the court’s decision unless the cheating parent did something like leaving the child alone in a parked car while rendezvousing with her lover. In this case, her actions reflect on her parenting abilities.

Can You Date While Separated in South Carolina?

Timing is everything, as they say. Although many other states are more lenient, South Carolina’s domestic relations law specifically states that adultery is cheating unless the spouses have already entered into a written and signed marital settlement agreement or a court has issued a legal decree of separation.

This means that if you and your spouse have agreed to part ways, if you’ve moved into separate households, and even if one of you has already filed for divorce, your spouse can still say you’re committing adultery if you date or otherwise enter into a romantic relationship if you haven’t also signed an agreement as to how you’ll end your marriage or asked a court to legally declare you separated. This can have some serious ramifications.