My Spouse Cheated — How Does Adultery Affect Our South Carolina Divorce?

Most people who sit down with a family lawyer after discovering an affair want to know two things. Can I get divorced now, instead of waiting a year? And what does this mean for the money? In South Carolina, adultery bears directly on both. It is one of the few grounds that ends a marriage without the one-year separation, and it carries the harshest financial consequence in our family law: a spouse who commits adultery at the wrong time cannot receive alimony at all.

But “my spouse cheated” and “the court finds adultery” are different sentences. The second requires proof, the proof has to be gathered lawfully, the timing has to fall on the right side of a statutory cutoff, and the accusing spouse must not have forgiven the affair in the meantime. Meanwhile adultery matters far less than most people expect to custody, and only as one factor among many to the division of property.

This article covers what adultery does, what has to be proved, the defenses, and practical advice for either side of the accusation. For quick answers, see our divorce FAQ and alimony FAQ.

Adultery as a ground: the way out without the one-year wait

South Carolina allows a divorce on five grounds: adultery, desertion for one year, physical cruelty, habitual drunkenness (including narcotic drug use), and living separate and apart without cohabitation for one year. S.C. Code Ann. § 20-3-10. The last is the no-fault ground, and it carries the wait its name describes: the year of separation must run before the divorce is granted.

Adultery does not. A spouse with provable adultery can file immediately — even while still living under the same roof — and the case moves on the court’s ordinary schedule. The statutory floor is that no final decree may be granted until three months after the complaint is filed. S.C. Code Ann. § 20-3-80. In practice the timetable is set by whether the case settles. When the adultery is admitted and everything else is agreed, we schedule the final hearing for after the three-month mark, so the judge can approve the agreement and grant the divorce at the same hearing and nobody has to come back to court. That is the real choice for many couples: wait out the year, or one spouse admits adultery and the divorce is done in about three months. Keep perspective, though. The divorce decree itself is usually the least important part of the case. The final order on custody, support and property is what actually governs your life.

Adultery is not limited to opposite-sex relationships. In a case applying the alimony bar, the Supreme Court of South Carolina held that “homosexual activity between persons, at least one of whom is married to someone other than the sexual partner, constitutes adultery.” RGM v. DEM, 306 S.C. 145, 410 S.E.2d 564 (1991).

One more point surprises people: proving adultery is not always necessary to get divorced. If one spouse has a strong fault case and the other has a year’s separation, the court may grant the divorce on either ground — and the Court of Appeals has declined to change the ground on appeal where granting the divorce for adultery “would not dissolve the marriage any more completely.” Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct. App. 1998). What matters more is usually not which ground ends the marriage but whether adultery is found, because the finding drives alimony.

What has to be proved — and how much

The standard is demanding. The proof “must be clear and positive, and the infidelity must be established by a clear preponderance of the evidence.” McLaurin v. McLaurin, 294 S.C. 132, 363 S.E.2d 110 (Ct. App. 1987) (quoting older Supreme Court authority). That is more than the ordinary civil standard of “more likely than not,” and courts take it seriously.

But the courts also recognize reality: “as adultery, by its very nature, is an activity which takes place in private, it may be proved by circumstantial evidence.” Id. Nobody is expected to produce an eyewitness. The circumstantial test has become the working rule of every adultery case:

In plain terms: inclination is evidence of a romantic interest — a photograph of a kiss, affectionate messages, a weekend away that only makes sense as a romance. Opportunity is evidence that the two were alone somewhere private where they could act on it. You need both. Lunch in a crowded restaurant shows neither, and suspicion — however well-founded it feels — is not proof.

The two halves often come from the same evidence. In Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114 (Ct. App. 1989), the court observed that “if it were not for circumstantial evidence, the practice of adultery would scarcely be known to exist,” and that two people who park alone at night and sit very close together invite the inference that they are romantically disposed toward each other. The opinion’s summary: “Such is life.”

There are limits on the other side. Evidence that merely places a spouse and another person together — even often, even after admitted dating — is not enough. In Fox v. Fox, 277 S.C. 400, 288 S.E.2d 390 (1982), the Supreme Court reversed an adultery divorce despite admitted dating and weekend trips together after the separation, because evidence placing two people together on several occasions, “without more, does not warrant the conclusion that adultery was committed.” Judges look for the more: an overnight stay, a hotel room, a trip with no innocent explanation, affectionate conduct, the spouse’s own admission.

The proof also has to be specific. The traditional rule is that it “must be sufficiently definite to identify the time and place of the offense, and the circumstances under which it was committed” — a rule the courts relax when the judge is fully convinced and the accused spouse had a full chance to respond. McLaurin, 294 S.C. 132. The practical lesson is that adultery evidence goes stale. Everyone may be sure an affair happened two years ago, but without a particular person at a particular time and place, a two-year-old affair is often impossible to prove.

Two other rules shape the proof:

• Admissions count. A spouse’s own uncontradicted admission of the affair is itself evidence from which the court may find adultery. McLaurin, 294 S.C. 132.
• Corroboration. Because the law guards against spouses colluding to manufacture a divorce, testimony supporting a divorce ground is ordinarily corroborated — but the requirement “may be relaxed when it is evident that collusion does not exist,” as when the adultery is hotly contested. Mick-Skaggs v. Skaggs, 411 S.C. 94, 766 S.E.2d 870 (Ct. App. 2014) (citing McLaughlin v. McLaughlin, 244 S.C. 265, 136 S.E.2d 537 (1964)). Collusion itself defeats a divorce. S.C. Code Ann. § 20-3-20.

How adultery actually gets proved

In the cases we see, adultery is proved in one of three ways, and often a combination.

The investigator. In a contested case, the backbone is usually a licensed private investigator’s sworn report and testimony: dates, times, addresses, photographs of arrivals and departures, vehicles parked overnight. A typical composite: a spouse notices a pattern of unexplained evenings; the investigator, working from a few dates the client supplies, documents two overnight stays at the same residence within a month. That is inclination and opportunity, recorded by a disinterested witness with timestamps. An investigator is the best way to prove adultery, but not always worth the money — if no alimony is at stake and the spouse is not contesting the divorce, the bill may buy very little. When there is something to win, it matters that the statute lets the court order one spouse to pay the other’s “attorney fees, expert fees, investigation fees, costs, and suit money,” after considering the parties’ financial resources and marital fault. S.C. Code Ann. § 20-3-130(H).

Admissions. More adultery cases than people expect are resolved by admission — in the answer to the complaint, in response to requests to admit served in discovery, or under oath at deposition. Admissions tend to come when the other side’s evidence is already strong and the accused spouse’s lawyer advises that a denial will not survive trial. Admissions also become bargaining chips: one spouse may admit the ground in exchange for terms on property, debt or fees.

The paper trail. Messages, photographs, social media, receipts, phone records and bank statements frequently supply the inclination half of the proof — and sometimes the opportunity half, too. In Mick-Skaggs, the court found the wife’s text messages to be “circumstantial evidence that indicate a continued disposition to commit adultery,” and affirmed the denial of alimony. Those messages must be obtained lawfully. A spouse who logs into the other’s accounts or installs monitoring software risks criminal exposure, a civil lawsuit, and exclusion of the evidence; we cover those rules in detail in our article on text messages as evidence. The short version: what you already lawfully have is worth more than anything you would have to take.

Adultery at the temporary hearing

Adultery is not only a trial issue. At the temporary hearing at the start of the case — decided on affidavits, not live testimony — a spouse with strong evidence can ask the court to find adultery on a preliminary basis. The Court of Appeals has held it was error for a family court to refuse even to consider a husband’s evidence of adultery when deciding temporary alimony. Watson v. Watson, 291 S.C. 13, 351 S.E.2d 883 (Ct. App. 1986). In our practice, a solid investigator’s report attached to the affidavits is what moves a temporary hearing: it can defeat a temporary alimony claim, support reimbursement of investigator fees, and strengthen a request for exclusive use of the marital home. Suspicion does none of those things. A family court will not order a spouse out of a house they own on a hunch.

The alimony bar: the highest-stakes part of an adultery case

This is the provision that turns an affair into a financial event:

Read the statute closely, because each part matters.

It is absolute. The court does not weigh the length of the marriage, the dependent spouse’s need, or how the affair began. If adultery is proved and it happened before the cutoff, no alimony — periodic, lump-sum, rehabilitative, or otherwise. The bar applies equally to husbands and wives.

Separation does not stop the clock. Spouses who have moved out often assume the marriage is “over” for these purposes. It is not. The cutoff is a signed written agreement or a permanent order — not a move-out date, not a temporary order, not filing. In Griffith, the court found the wife’s post-separation adultery proved and applied the bar.

We give every client who may seek alimony the same warning at the first meeting, whether or not anyone has mentioned an affair: no dating and no romantic relationship of any kind until a settlement agreement is signed. Not after you move out, not after the case is filed, not even if your spouse is openly seeing someone. It is the single easiest way to lose an alimony claim, and it happens to careful, intelligent people who assumed separation changed the rules.

It reaches back to temporary alimony. If the dependent spouse received temporary alimony while the case was pending and adultery is later proved, the bar “requires the reimbursement of court-ordered temporary spousal support.” Griffith, 332 S.C. 630 (citing Watson, 291 S.C. 13).

It must be pleaded. Adultery as a defense to alimony is an avoidance that has to be raised in the pleadings. A spouse who never pleaded it may be barred from even asking the other spouse about extramarital relationships at trial. Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996). Pleadings can often be amended when new facts emerge, but waiting is a risk.

Three different cutoff dates

The alimony bar is not the only place the statutes draw a line in time, and the lines are not identical:

The practical consequence is significant. A temporary order cuts off the relevance of later conduct to property division — but not to alimony. A spouse who begins dating after the temporary hearing and before a signed agreement may have done nothing to their share of the house and everything to their alimony claim.

That is why, in fault-sensitive cases, the parties sometimes reach and formally sign a written property or marital settlement agreement early — occasionally with a mutual provision that each spouse may move on romantically without either claiming adultery afterward. Once that agreement is formally signed, the statute’s cutoff has been reached. Whether and when to sign one is a negotiation, not a formality.

After the divorce

Once a final order is entered, the adultery bar is behind you, and dating does not affect an existing alimony award. Continued cohabitation is a different matter: periodic alimony terminates on the supported spouse’s “continued cohabitation,” defined as residing with another person in a romantic relationship for ninety or more consecutive days, unless the parties agreed otherwise in writing. S.C. Code Ann. § 20-3-130(B).

Defenses: condonation and recrimination

Condonation — forgiveness, with conditions

Condonation is the defense we see raised most often. Our Supreme Court has quoted the classic definition: condonation “is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness.” McLaughlin, 244 S.C. 265 (quoting Corpus Juris Secundum). Forgiveness can be express or implied, and it is presumed from resuming the marriage: “Condonation may be presumed from cohabitation; and lapse of time, or a continuance of marital cohabitation with knowledge of the offense, raises a presumption of condonation.” Id.

What the spouse says about forgiving matters less than what the spouse does. In Doe v. Doe, 286 S.C. 507, 334 S.E.2d 829 (Ct. App. 1985), a husband testified that he never forgave his wife and never trusted her again, but he kept living with her “to preserve the marriage.” The court held the conduct condoned, so he could not use it either as a ground for divorce or as a bar to paying alimony. Our divorce FAQ addresses how long a couple can try to work things out before condonation becomes a real risk.

Condonation is conditional. If the forgiven spouse resumes the affair, or starts another, the original offense can be revived: “Condonation may be revoked by subsequent illicit conduct.” RGM, 306 S.C. 145. That is exactly what happened in RGM: the husband kept trying to reconcile after learning of the relationship, and the couple resumed relations, but the wife continued the affair, and the alimony bar applied.

Recrimination — “you did it too”

Recrimination is the defense that the accusing spouse committed a marital offense too. It survives in narrowed form. It is no defense to a divorce on one year’s separation; the statute says so expressly. S.C. Code Ann. § 20-3-10(5). And it is no defense to the alimony bar. In Spires v. Spires, 296 S.C. 422, 373 S.E.2d 698 (Ct. App. 1988), both spouses had committed adultery, and the wife argued the husband’s misconduct should excuse hers. The court disagreed: “We hold the violation of the law by one’s spouse does not justify nor give license to the other to violate the same law without penalty.” The Supreme Court cited Spires with approval in RGM.

So when both spouses have cheated, the usual result is that neither receives alimony, and the divorce is granted on another ground. Mutual fault can still matter elsewhere — to property division and attorney’s fees, where fault on both sides is weighed.

Both defenses are affirmative defenses that must be pleaded: Rule 8(c) of the South Carolina Rules of Civil Procedure lists condonation and recrimination by name. Rule 8(c), SCRCP.

Adultery and the division of property

Many clients expect the faithful spouse to receive a larger share of the marital estate. Not automatically. Marital misconduct is one of the factors the court weighs in apportioning property, “if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage.” S.C. Code Ann. § 20-3-620(B)(2).

Two things follow from that language. First, fault is one factor among many — alongside the length of the marriage, each spouse’s contributions, incomes, health, and the rest — and the court decides how much weight to give it. Second, the statute points to concrete effects: marital money spent on the affair, a business neglected, a marriage that ended because of it. A family court is not a forum for punishment, and the property division is not a fine.

Alimony works similarly when the paying spouse is the one who cheated. The court must weigh “marital misconduct or fault of either or both parties” among the alimony factors, on the same economic-effect-or-breakup terms. S.C. Code Ann. § 20-3-130(C)(10). The supporting spouse’s adultery does not create an alimony award by itself, and alimony is not supposed to be a punishment. But when the dependent spouse has a genuine claim, the other spouse’s affair can strengthen it.

Adultery and custody

Here the law is the most different from what clients expect. The Supreme Court put it plainly decades ago, and the rule still governs:

The morality of a parent is a proper factor for consideration but is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child. Custody of a child is not granted a party as a reward or withheld as a punishment.

Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228 (1975). The Court of Appeals has said the same in so many words: “conduct which is ‘immoral’ must also be shown to be detrimental to the welfare of a child before it is of legal significance in a custody dispute.” Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441 (Ct. App. 1990).

Hartley shows how this plays out. The court found the mother had committed adultery, then affirmed her custody of the parties’ daughter anyway, because nothing showed the child’s welfare had been adversely affected by the relationship in any substantial way.

What does move a custody case is the affair’s spillover onto the children: exposing them to the relationship, overnight guests when the children are home, introducing a new partner too soon, missed parenting time, or involving a child in the conflict. That is why temporary custody orders commonly include a paramour provision restricting overnight romantic guests while the children are present — see our custody FAQ. A parent who keeps the new relationship away from the children until the case is over gives the other side very little to work with.

The affair is about the marriage. The custody case is about the children, and judges keep the two apart.

Adultery is still a crime — which brings in the Fifth Amendment

South Carolina has never repealed its criminal adultery statute. A person guilty of adultery is liable to indictment and, on conviction, a fine of $100 to $500, imprisonment of six months to one year, or both. S.C. Code Ann. § 16-15-60. The criminal definition is narrower than the divorce ground — “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.” S.C. Code Ann. § 16-15-70.

Whatever the realistic odds of prosecution, the statute’s existence means a spouse or paramour asked about the affair under oath can invoke the Fifth Amendment privilege against self-incrimination. As the Court of Appeals recognized, “it is legally proper for persons facing criminal prosecution for adultery to invoke their Fifth Amendment privilege against self-incrimination.” Griffith, 332 S.C. 630.

The privilege comes at a price in a civil case, and Griffith is where South Carolina set it:

• An adverse inference is allowed. The court joined other jurisdictions “in concluding that it is permissible for the fact finder to draw an adverse inference in a civil case against a party invoking the Fifth Amendment privilege against self-incrimination.” In Griffith, that inference, added to the rest of the testimony, was enough to establish the wife’s adultery by a clear preponderance.
• Refusing to answer can cost an alimony claim. The wife there had been granted immunity, so she had no legal justification for refusing. The court held she could not refuse to answer questions about her alleged adultery and still pursue alimony. The opinion surveyed courts elsewhere that put a party to the choice between keeping the privilege and pursuing a claim for affirmative relief.
• Non-party witnesses are different. The court voiced “concerns” about drawing an inference against a party from another witness’s invocation of the privilege, such as an alleged paramour’s, and did not decide that question.

Taking the Fifth in family court is a strategic decision with real costs, best made with a lawyer before the deposition or discovery responses — not on the witness stand.

Practical advice — whichever side you are on

If you believe your spouse is having an affair

1. Talk to a lawyer before you confront anyone. A confrontation tells your spouse to start being careful, and the best evidence is usually gathered before that happens.
2. Think hard before resuming the marriage. Taking time to decide is normal, and a short period of trying is not automatically fatal. But moving back in or resuming relations with knowledge of the affair is how condonation happens.
3. Hire an investigator through your lawyer. Work directed by counsel is aimed at what the court needs: dates, places, and proof of both inclination and opportunity. Keep every invoice; when adultery is proved, investigation fees are commonly shifted to the other side. § 20-3-130(H).
4. Keep what you lawfully have, and take nothing else. Your own messages, photographs, and records are fair game. Your spouse’s accounts and devices are not. See our text-messages article.
5. Ask whether proving adultery is worth it. If neither spouse is seeking alimony, the payoff is mostly speed and leverage. Sometimes the evidence is better used as a bargaining chip than as a trial theme.

If you are the one accused

1. Do not lie under oath. A false denial that collapses under an investigator’s photographs does more damage to your credibility — on custody, on money, on everything — than the affair itself.
2. Delete nothing. Destroying messages after a case is underway or anticipated creates a separate problem, and the other person’s copies survive anyway.
3. Get advice before you answer discovery or sit for a deposition. Whether to admit, deny, or invoke the Fifth Amendment is a decision with consequences under Griffith, and it should be made deliberately.
4. Know the cutoff before you date. Until there is a formally signed written settlement agreement or a permanent order, new romantic relationships can cost you alimony. § 20-3-130(A). If alimony is not in play, the realistic cost of dating mid-case is usually narrower — reimbursing the other side’s investigator, perhaps some attorney’s fees — and property division and custody are not supposed to turn on it, as long as the children are kept out of it.
5. Consider whether a denial is worth defending. If you have decided to move on and the relationship is going to be proved anyway, admitting it through your lawyer can cut off the other side’s investigator bill — the bill you would likely be ordered to repay.
6. Keep the relationship away from the children. Follow any paramour provision to the letter. The affair may cost you financially; it does not have to cost you time with your children.
7. Think about resolution. Where the evidence is strong, an admission negotiated as part of a full settlement often produces a better overall result than a trial that ends in the same finding.