4 Ways Adultery Can Affect Your Charleston Divorce
If your spouse has cheated, you are feeling a deep sense of betrayal. It may seem like your pain will never end.
You have many questions and few answers. How could he do it? Why did she commit adultery? Did your wedding vows mean nothing to him?
At this challenging moment in your life, you need help.
As a Charleston divorce lawyer, I daily revisit my painful divorce. It is a place from which I can feel the pain of others. Without judging, I listen closely to each man and woman who walks into my office. I try from the first meeting to help them – as I will you – to recover emotionally and legally from the wounds of adultery.
How Can Adultery Affect The Outcome Of Your Charleston Divorce?
Adultery can have a major impact on your divorce, regardless of whether you live in Goose Creek, James Island, Summerville, or another Lowcountry community. The more significant effects of adultery include the following:
- You Will Qualify to File a Fault-Based Divorce. You can file immediately for a fault-based divorce and complete your divorce much quicker – if your spouse has committed adultery. Unlike the one-year separation requirement for filing for a no-fault divorce, your fault-based divorce can be filed as soon as you are ready to start the process. This means that you can complete your divorce much quicker and start building your new life.
- Physical Separation Is Not Required to File for an Adultery Divorce. You can file for your divorce even though your spouse has not moved out of the marital residence. In contrast, you cannot file for a legal separation or a no-fault divorce if both of you continue to live in the same residence. If your cheating spouse refuses to move out, you can still file for an adultery caused divorce.
- Your Cheating Spouse Cannot Receive Alimony. South Carolina law absolutely prohibits an award of alimony to a spouse who has committed adultery. This is true even if you live on Daniel Island, earn more than $1 million per year, and your cheating spouse has not worked in ten years. A person, who commits adultery, cannot receive alimony as part of the subsequent divorce. Consequently, your divorce judge cannot order you to pay alimony to your cheating spouse, regardless of whether you live in Mt. Pleasant, North Charleston, Isle of Palms, or anywhere else in South Carolina. You can learn more about alimony by reading “Frequently Asked Questions Regarding Charleston Alimony.”
- You May Get A More Favorable Division of Marital Assets. If your spouse’s adultery has contributed to the breakdown of your marriage, your Charleston divorce judge has discretion to award you a greater portion of the marital property. This can have great financial significance in your divorce if you live in an expensive home on Kiawah Island, Sullivan’s Island, or another affluent community or have a high net worth divorce.
Your divorce judge in Berkeley County, Charleston County, or Dorchester County will weigh a number of factors (including adultery) in dividing your marital property as part of your divorce. If your spouse has cheated on you, you could get a significantly greater percentage of the marital assets and a lesser percentage of the marital debt than you would have gotten with a no-fault divorce. For more information on the division of marital assets and debts, read my article “How is Property Divided in a Charleston Divorce?”
What Do You Have To Prove In A Charleston Adultery Case?
In my experience as a Charleston divorce attorney, this is one of the more frequently asked questions. You will need more than a suspicion to prove adultery in a Charleston divorce court. South Carolina family law requires you to prove two things:
(a) Your spouse had the “inclination” to commit adultery; and
(b) Your spouse had the “opportunity” to commit adultery.
As a practical matter, “inclination” to commit adultery means that your spouse has shown a desire to have a romantic or sexual relationship with another person – regardless of whether that relationship is heterosexual, homosexual, or lesbian.
You cannot satisfy the requirements for adultery just by proving that your spouse wants to commit adultery. You must also prove that your spouse had the “opportunity” to act on that “inclination” to be unfaithful.
For example, proof of an addiction to internet porn – standing alone – is not enough to prove adultery in a Moncks Corner, Seabrook Island, or West Ashley divorce. You must prove that your spouse had more than a fantasy or desire to have sex with another person. You must also prove that your spouse had the actual “opportunity” to act on the desire to have a romantic or sexual relationship with another person.
Proving the “inclination” to commit adultery without also proving an “opportunity” to commit adultery does not satisfy the requirements of South Carolina family law for a fault-based divorce. You must prove both adultery elements – your spouse desired to have a relationship with another person and your spouse acted on that desire.
How Do You Prove Adultery In A Charleston Divorce?
Proving adultery typically requires the assistance of an experienced Charleston divorce lawyer. While you do not have to provide your judge with a videotape of sexual intercourse or an eyewitness to a sex act, you need direct proof of your spouse’s inclination and opportunity to have an affair.
Your Charleston divorce attorney can explain to you a variety of techniques that can be used to prove that your spouse has cheated. For example, you may obtain evidence from your spouse’s phone logs, text messages, or email correspondence. Likewise, through the use of a private investigator, you can monitor your spouse’s movements and, potentially, obtain videotape and eyewitness testimony of inappropriate behavior. Credit card bills and computer hard drives can also provide proof that your spouse has cheated on you.
What Should You Do If You Suspect Your Spouse Is Committing Adultery?
You should contact a Charleston divorce lawyer to discuss the reasons why you believe your spouse is cheating or has cheated recently. You should not wait and hope the problem will go away.
If you have knowledge that your spouse is committing adultery and you do not file for divorce, your spouse may be able to argue successfully in court that you accepted or “condoned” the adulterous behavior. If your Charleston divorce judge concludes that you condoned your spouse’s extramarital affair, you could: (a) be forced to wait one year to get a no-fault divorce; (b) have to move out of the marital residence before you could file for a no-fault divorce or legal separation; (c) be ordered to pay alimony to your spouse; and (d) potentially lose tens of thousands of dollars from the division of marital property.
If your husband or wife is cheating on you, you should make an immediate appointment with a Charleston divorce attorney to discuss how to protect your children and your legal rights. If your spouse has any indication that you are suspicious, your spouse may destroy all tangible evidence of the adultery.
I can help you. Please pick up the phone and call me now at 843-631-7117 to discuss your specific situation. Alternatively, please fill out the “Request a Free Consultation” form, which appears on the right side of this page. Working together, we will build a better tomorrow for you and your children.
I am looking forward to speaking with you soon.