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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  3. Michael Mills says:

    By Michael Mills, CPI
    Mount Airy, Maryland

    As a thirty three year veteran, Private Investigator and agency owner, I have investigated hundreds of infidelity cases, the majority of which were successful and my clients position in the litigation was made superior, as a result of the documented or recorded evidence assembled during the course and conduct of the investigation. The application of my skills and knowledge of the laws, procedures and tactics necessary to the governance and adjudication of domestic relations or family law litigation, more often than not broke the backs, extinguished the will, neutralized and prevented the cold, cruel efforts by an opposing party to manipulate facts and mislead the courts, all conducted in an effort to control or manage any harsh judgment that the court might impose upon the opposing party or to intimidate my client with the threat of impoverishment and or to convince the court that the “cheating party” was not guilty of the crime of adultery. And over the years, though not personally affected, but on an emotional level, I have deeply contemplated and endured the fallout which occurs when the dissolution of a once love and respect filled marriage occurs.

    Not unlike an attorney who is ethically expected to represent their client before the court, or the police officer who is confronted with a dangerous environment or situation, especially Domestic disputes or abuse. I to, by virtue of the duties and activities, am expected to employ or implement my investigative skills to establish and document the necessary facts and circumstances so that my client’s position is properly established or proven.

    As it relates to “Domestic Relations” issues it is my obligation to truthfully and objectively establish adultery, desertion, the suitability of a parent or guardian to be granted or denied by a court, certain parental rights or privileges where the health and welfare of minor children are alleged to be jeopardized and or called into question.

    It is my duty to fully and to the best of my ability uncover, document, record or establish material and circumstantial facts which when presented to the court will enable a judge or Jury the ability to issue a judgment which is deserving or fair to all parties, including the children and other integral family members. I take great pride in the work I perform, but in almost all cases, one of the parties will likely suffer the consequences of their actions. The worst case scenario, the aggrieved party is wrongfully denied judgment in their favor, either by lack of funds necessary to pay the cost of competent and proper legal counsel, resulting in the loss of societal standing, character assassination, and the loss of all they have worked to achieve.

    When I am exposed to the pain and heartache my client’s suffer, I too am often left emotionally drained. It has been and continues to be my practice to conduct consultations with my clients so that I can become acquainted with my clients, establish the facts and merits of the investigative mission, as well as advise and impart certain wisdom and enlighten the client to the potential financial losses they may experience and the pain and heartache which the client will have to endure and the effect that it will have on the lives of their children and future standard of living and quality of life. If clients do not, in my opinion have a case worthy of a court’s jurisdiction, I will counsel my clients and urge them to re-evaluate the condition of their spousal relationship and to consider finding or considering a better way, short of divorce, to resolve the issues which can alienate one’s spouse from the other to the point that the parties dissolve their marriage and destroy the ties that bind the parties and their family. Having done my best to assure that I have done all that I can to minimize the destructive fallout of a marriage and family destroyed, based on the evidence or merits of the case I am presented with, I will either agree to conduct the investigation or decline.

    At the end of a consultation or completion of an investigation, I always looked toward the heavens and gave thanks that I had a loving, hardworking, affable, and sweet wife who was respected by all who knew, met, or befriended her.

    As is the case for many who find themselves betrayed, emotionally scarred, and worried about their futures and their health, the loneliness that comes with the empty-nest, and loss of a once cherished spouse and the slow climb back up the ladder of life, I dedicate the following research report to all who have experienced the dynamics and issues recited above and below. I hope that the discussion and facts set forth will provide a degree of understanding, which hopefully will open the door to the healing process necessary to living day to day and achieving a sense of one’s self worth and love of life.


    Though multi-faceted, in general there are various types of infidelity. In addition to types, there are defined categories of infidelity based on motivations.


    Infatuation & Emotional Bonding.

    Neglected or Unfulfilled Needs, actual or perceived, fueled by mid-life crisis, hormonal changes, the denial of the which sets in motion the need for the spouse to assign blame upon his or her spouse and justify abandonment of the home and hearth and desertion of their marriage. Statistically however, the blame game is nothing more than a mask with the intention to continue forth or initiate an adulterous affair, where infatuation and the protection of emotional bonding further motivates the mid-life crisis spouse to justify and pursue a course of conduct that is fraught with trials and tribulations and as the sheen of the “New Energy Relationship” fades, so to does the infatuation and sense of security offered by the emotional bonding as its chains break and fall away.

    Sexual Addiction, Pain Numbing, but temporary and empty.

    Philanderer, focused and energized by the thrill of the hunt and conquer of the chase, sometimes condoned by the other party who is motivated in the same way as the Philanderer, but more often than not the other party is viewed and targeted by the Philanderer and is mislead, baited, coerced and showered with attention and becomes dependent upon the attention and false feelings of confidence and self worth or euphorically high on his or her sense of happiness and fulfillment and repeatedly becomes devastated when the philanderer grows disinterested and abruptly exits the relationship, causing the other party to suffer emotionally and physically and all the while the Philanderer’s narcissistic sense of self, feels no remorse or guilt.

    Brief encounters either covert or condoned by both parties.

    Intimacy Avoidance:
    No desire to share one’s self emotionally, sexually, and respectfully with their spouse, the result of which causes both spouses to become alienated from each other causing the aggrieved and confused spouse to suffer the pain of loneliness and emotional abandonment of the spouse whose goal, for what ever the reason(s) is focused on avoiding and distancing their self from the once, mutual, natural, nurturing and bonding intimacy of the past.

    Result: Exit, emotional, abandonment, desertion of home and hearth, betrayal, and elicit or illicitly, deceitful actions and behavior, the likes of which in days gone by would never have been deemed justifiable, acceptable or conceivable by the mid life crisis spouse, and to have done so would most probably violated the mid life crisis spouse’s character and moral compass, and sense of pride and self worth. As so often is the case, the mid life crisis spouse, in an effort to minimize their guilt, will adopt, what I call a well practiced “Story Line” and after much revision and refinement and repeated often, the mid life crisis spouse, begins to believe that the “Story Line” is true, which in time will result in the mid life crisis spouse, realizing that their quest to cover up, deceive and “white wash” their adulterous behavior in the eyes of family, friends, co-workers and potential, future relationships, they will in the end realize, it is they who have been betrayed by their refusal to take responsibility for poor choices made and the actions and errors of their way.

    Adultery, cheating and extramarital sex are synonymous types of infidelity, but these may not be an affair. For most, an emotional affair is the worst and most painful type of infidelity. It’s not just sex; it’s usually not even about sex or fueled by sex. It is about how the mid life crisis spouse feels with the alienator; who is appreciative, validating, and attentive and makes the mid life crisis spouse feel special.

    Why Now?
    What makes a mid life crisis spouse, susceptible to an affair, why now? Mid Life Crisis is a crisis of identity. The mid life crisis spouse, suddenly has no idea who they are, or who they want to be. The person they have been, is not working out; they may feel like a failure, having failed to achieve their goals, disappointed in the goals they have achieved or unsure of and unable to understand their feelings. They may feel stuck at the bottom, lost in the middle or lonely at the top.

    Unfortunately, many, mid life crisis parties, become tempted by the nuances of a “ New Energy Relationship”, which can easily be found along the “Infidelity Turnpike” which once moving, speeds full-steam, toward Oz and the lands of the “greener grass”. As any person with a green thumb will tell you, green grass remains green, so long as it receives loving attention, water and the light of sunny days. But, as the stresses, strains and road-rash pains, suffered along the “Infidelity Turnpike” begin to whither upon, the passion-batteries, which energize the “New Energy Relationship”, the grass becomes brown, begins to die and in the end, the once exciting “New Energy Relationship” becomes mired in the mud of their minds, hearts and souls, which at one time, in days gone by, sprouted the green, green grass of home, nurtured by the rains of respect, character and love of family. Some call it “Karma”, while others might say, “ You made your bed, now lie in it” and another might say “You reap what you sow”. In the end, it is the mid life crisis spouse, who must decide to own the choices they have made and pick up the hammer, nails and saw of character, and begin to rebuild upon the”Foundation Rock of the family” the once vibrant, trust and respect filled nest of life.

    Infidelity is often a result of feeling needs have been unfulfilled and neglected. Often such feelings are valid reality, but this is not always the case. A mid life crisis spouse is experiencing internal, unhappiness outside of their marriage. But they are either unaware or deny the deep and superficial causes of their unhappiness. Since they do not know why they are unhappy, they assume their unhappiness must be the fault of their marriage and spouse, the major environment and influence in their life. In addition, internal unhappiness with projection toward the spouse, creates an environment of tension within the marriage, causing a relationship to suffer. Needs previously fulfilled become neglected as one or both partners withdraw or react to their internal unhappiness.

    Getting caught cheating does not encourage a mid life crisis spouse to get help and end the relationship as it may with a non mid life crisis spouse, rather it provides the necessary inciting incident to “abandon the Marital Ship” and move out and allows them to experience a sense of freedom so powerful, that they will do all within their power to preserve and prolong that which fuels their sense of freedom.

    Sadly, cheating and affairs are not uncommon. Many who have affairs do so while living at home in a marital relationship with the spouse. Mid life Crisis affairs may start this way, but Mid-lifers generally, more often than not, abandon their home, leaving their spouse and children, for the purpose of continuing and deepening their adulterous affair with the alienator. Since they no longer live at home, it is easier to camouflage the affair by deception, lies, subterfuge, vague answers and “story-lines” and sometimes undertake efforts to alienate the affections of family members from the betrayed spouse, which eventually, once the affair is exposed, will cause a mid life Crisis spouse, much emotional trauma as those closest to them lose their trust and respect for them.

    Once exposed, and the mid life, crisis, spouse’s affair becomes public, they are often relieved and tend not to care what others think and settle in to a routine and lifestyle of a “husband and wife” relationship and in fact, often flaunt the affair shamelessly, as they do not own their behavior as bad or adulterous, but instead defend the affair because they left and have convinced themselves that they are no longer “in love” with their spouse, which results in the cycling between guilt, and lack of remorse and refusal to end the relationship.

    The guilt of cheating serves to further isolate a mid-life crisis spouse from their spouse, which perpetuates their guilt and loneliness causing them to reach out to the alienator for the reassurance that they are a good and worthy person. Though it is not the cause, guilt fuels infidelity.

    The End

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