THE MCMILLIAN LAW FIRM PROVIDING COMPASSIONATE LEGAL REPRESENTATION IN FAMILY LAW AND DIVORCE FOR CHARLESTON, SC AND SUMMERVILLE, SC
If you have ever seen the movie "Something to Talk About," there is a scene where Julia Roberts stands up in front of a room full of women and shouts "Is anyone else here sleeping with my husband?" This of course happens at a point in the movie when Ms. Roberts finds out that the husband of the character that she is playing is having an affair. Now in real life of course it is never that easy, though sometimes a confession from a spouse can be obtained . . . usually about 3 seconds after they are busted. However, the vast majority of Divorce cases in South Carolina that involve adultery usually have to rely upon a fine mix of irrefutable proof and circumstantial evidence. It is the very rare case that someone is actually "caught in the act," but with modern technology, and the pervasiveness of text messaging, sharing photos, Tinder, Facebook, and the like, where is the line drawn in South Carolina Family Courts concerning what legally constitutes adultery.
WHAT IS THE LEGAL DEFINITION OF ADULTERY IN SOUTH CAROLINA? THE ELEMENTS OF ADULTERY
South Carolina Family Courts are going to want proof of two specific elements two make a finding that adultery occurred:
- Your spouse had the motive to cheat! AND
- Your spouse had the opportunity to cheat!
First of all, did you notice that you don't have to prove actual sexual intercourse or other sexual contact. I will be the first to admit that having the grainy video from the Private Investigation peeping in the motel room window would provide for an open and shut case, but that specific evidence is not a requirement under South Carolina law.
There is case law in South Carolina, however, that does suggest that while direct evidence of sexual intercourse or sexual contact is not required to prove adultery, at the least there must be circumstantial evidence of a romantic relationship or evidence that there exists an inclination of a romantic relationship between the cheating spouse and the paramour. Circumstantial evidence of a romantic relationship or the inclination of a romantic relationship would be evidence of written exchanges, romantic gestures, or other interactions suggesting a romantic interest.
What would be evidence of a motive to cheat? Text messages or or voicemails to your spouse that spells out meeting places and meeting times. Conversations overheard by friends of yours or your spouse. Admissions by the other party concerning meetings or "hook ups" with your spouse. These are all evidence of motive.
What would be evidence of the opportunity to cheat? This one is more direct. This evidence of your spouse being in a location or place that tends to lend itself to privacy, and that the paramour of your spouse is in the same place or location at the same time. The key here is that the two actors (the cheating spouse and the paramour) are in a place where they would have the opportunity to consummate the affair.
One final comment, that at this point may be clear but I don't want to miss, is that proving adultery in South Carolina does not require eyewitness testimony. South Carolina case law has been consistent is saying that adultery lends itself to being proven through circumstantial rather than direct evidence, since the very act of adultery usually requires some degree of privacy, solitude, and sneakiness.
DO I HAVE TO PROVE HE CHEATED? THE BURDEN OF PROOF IN ADULTERY
Under South Carolina case law, it is clear that at the very least the person making the accusation of adultery must establish what is called a prima facie case of adultery. What does that mean? It is basically a legal standard that says that the facts presented to the court taken as a whole tend to show adultery was committed. However, South Carolina case law also makes reference that adultery must be proven by a "preponderance of the evidence." This means that adultery, under the circumstances, most likely occurred. Therefore, South Carolina case law on adultery leaves us with a mixed bag for a burden of proof. The burden of proof, in layman's terms, seems to be a two part analysis. First, do the facts tend to show adultery. Secondly, if the facts tend to show adultery occurred, then do the facts and other circumstances tend to show that the adultery actually happened. I personally call it the "where there is smoke there is fire" burden.
HOW DOES PROVING ADULTERY EFFECT MY DIVORCE CASE
Adultery has several procedural effects that greatly sway the manner in which a divorce case will be administered by the Family Courts in South Carolina. Specifically:
- NO WAITING!! - If you can prove your spouse committed adultery, this is a fault based ground for divorce and there is no one year waiting period to get a final divorce.
- NO ALIMONY!! - If you can prove your spouse committed adultery, then the cheating spouse is prevented as a matter of law from receiving alimony
- PROPERTY SPLIT!! - If the cheating spouse has used funds and property, that was otherwise marital property, during the courtship of the paramour, the Family Court may deduct that amount from the final marital property split share of the cheating spouse.
CONTACT THE MCMILLIAN LAW FIRM, YOUR EXPERIENCED FAMILY LAW ATTORNEY IN CHARLESTON
If you have evidence of infidelity on the part of your spouse, and it is time to seek a fault based Divorce contact me at The McMillian law Firm. Sit down with a me for a conversation so that we can evaluate your evidence, weigh the merit of your claim, and begin the process of setting things straight and doing what is right for you and those effected by the cheating spouse. Contact me today and let's begin to reclaim your life.