Can Adultery Impact Alimony Awards in South Carolina?

Adultery is an emotionally charged issue in any marriage. Beyond the emotional impact, adultery can have significant, long-term legal consequences in a South Carolina divorce. Under South Carolina law, a spouse who commits adultery may lose the right to receive spousal support entirely, even if they would otherwise qualify for spousal support.

Couples considering divorce where infidelity is an issue must understand the impact of adultery on alimony in a South Carolina’s divorce.

Key Takeaways

• Under South Carolina law, adultery acts as a complete bar to an award of spousal support.
• To prove adultery, South Carolina courts consider whether the cheating spouse had the “inclination and opportunity” to commit adultery.
• The timing of the infidelity is critical. Entering into a new romantic relationship before a marital settlement agreement operates as a complete bar to spousal support, while a relationship that starts after may not affect an award of spousal support.
• South Carolina courts have ruled that recrimination, when both spouses cheat, is not a defense, and adultery will still bar an award of spousal support.
• Even if one spouse forgives marital infidelity, the original adultery can be revived if additional misconduct occurs.

South Carolina Bars a Cheating Spouse from Receiving Spousal Support

Under South Carolina law, adultery is one of the fault-based reasons for granting a divorce. It can also directly impact an award of spousal support, commonly referred to as alimony.

Under S.C. Code § 20-3-130(A), “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.”

Proving Adultery Under South Carolina Law

“Adultery” refers to sexual intercourse between a married person and another individual who is not their spouse. To trigger the bar on spousal support, the non-cheating spouse must show “clear and convincing” evidence of adultery. This legal standard is higher than the “more likely than not” standard common in most civil cases. Clear and convincing evidence must create a firm belief that marital infidelity occurred.

To prove marital infidelity, South Carolina courts apply the “inclination and opportunity” test. A spouse does not need to catch the other “in the act.” Instead, it is enough to show that your spouse had a romantic or sexual desire toward another person and had a private chance to act on that desire. To prove inclination and opportunity, courts may consider evidence such as romantic texts or emails, photographs or witness testimony of the couple holding hands or engaging in other displays of affection, or financial records showing spending on gifts, hotels, or travel.

Timing Is Critical

Timing is critical to the impact of adultery on alimony in a South Carolina divorce. Adultery that occurs before the signing of a property or marital settlement agreement or the entry of a permanent maintenance or support award bars spousal support payments. Adultery that occurs after that date generally has no bearing on an award of spousal support.

Suppose a couple separates in January, and one spouse enters a new romantic relationship in March, before the divorcing couple signs a separation agreement in September. Because the new relationship started before the separation agreement, it can act as a complete bar to spousal support, even though the married couple was already living separately. Conversely, suppose the same spouse waited until November to begin a new romantic relationship. In the second scenario, the relationship will not bar an award of spousal support because it started after the separation agreement was signed.

This rule can have strategic implications in a South Carolina divorce. A spouse who suspects infidelity may delay signing a settlement agreement or draw out negotiations in an effort to uncover evidence of an affair. Conversely, a spouse concerned about losing eligibility for spousal support may push to secure a settlement quickly to lock in more favorable terms or establish the cutoff date before circumstances change. A skilled family law attorney should be attuned to this dynamic, as the practical effect of when a new relationship began and when the separation was finalized can determine whether or not a client is eligible to receive spousal support.

Can an Award of Spousal Support Be Adjusted if Adultery Is Discovered Later?

Sometimes circumstances change after the court entered a judgment awarding spousal support payments. In these situations, South Carolina courts can modify or terminate an award of spousal support and order the paying spouse to repay any overpayment. However, this may depend on the type of spousal support awarded.

Recrimination: What Happens in Cases of Mutual Adultery?

The impact of adultery on alimony is not what you might expect in cases of mutual adultery. Some people assume that if both spouses cheat, the mutual infidelity cancels out the consequences. South Carolina courts refer to this issue as “recrimination,” and have explicitly ruled that it is not a defense.

In the 1988 case of Spires v. Spires, a South Carolina Court of Appeals stated that “Recrimination does not constitute an exception to this statute. We hold that violation of the law by one’s spouse does not justify nor give license to the other to violate the same law without penalty.”

Similarly, in the 1991 case of RGM v. DEM, where one spouse argued that her homosexual relationship should not be considered adultery under the law, the South Carolina Supreme Court ruled that both heterosexual and homosexual relationships count as adultery under the statute, stating that “explicit extramarital sexual activity constitutes adultery regardless of whether it is of a homosexual or heterosexual character.” The Court went on to state that “[T]he defense of recrimination does not constitute an exception to the statute barring alimony.”

The Effect of Condonation on Awards of Spousal Support

“Condonation” refers to a situation in which the non-cheating spouse forgives the cheating spouse and resumes the marital relationship. South Carolina courts treat condonation as conditional forgiveness; however, if the cheating spouse commits future misconduct, the original adultery can be revived as grounds for divorce and to bar an award of spousal support.

Condonation often arises when a couple tries to reconcile after an affair, such as when one spouse learns of infidelity but stays in the marriage and resumes normal marital relations. In the absence of new infidelity, a court may find that condonation occurred, and the adultery might not bar an award of spousal support. However, a new act of infidelity can revive the original act of adultery and act as a bar to an award of spousal support.