Adultery: What Proof is Required

One of the most common threats I discuss with prospective clients is framed in one of two ways:

  1. What do I need to be able to show to prove my spouse is having an affair?  or,
  2. My spouse is threatening to file for divorce on adultery grounds, can he/she do that?

When this is the case, my initial instinct is to believe that the proof of such an affair is thin at best or non-existent at worst.  Perhaps a the prospect has caught the spouse engaging in an “emotional affair” with an old classmate on Facebook that expands into text messages or telephone calls or maybe it is a internet pornography addiction.

So what level of “infidelity” is required to substantiate a divorce on the ground of adultery in South Carolina?

South Carolina law requires that the spouse seeking a divorce on the ground of adultery to show their spouse had the (1) inclination (or motive) to have an affair and the (2) opportunity to have an affair.  Inclination can be proven by showing the text messages, telephone calls, dates, public displays of affection, and so forth.  But that isn’t enough.  We must also show that the offending spouse had the opportunity to complete the affair.  In our fact patterns above, our proof of opportunity is lacking.  While there may be some bad behavior going on, there isn’t proof of an affair.

The other side of the coin is this: the law doesn’t care what your spouse was doing while they were alone with their girlfriend/boyfriend, as long as they were alone for a time long enough for the affair to occur.

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