The Law Of Forgiveness In Divorce: What’s At Stake?

Proving legal fault in a South Carolina divorce case can have huge financial repercussions. Condonation, or forgiveness, often plays a critical part defending an allegation of legal fault.

South Carolina is one of the states where legal fault can be proven against a spouse as a basis for divorce. While many states have adopted no fault divorce, in South Carolina divorce can still be granted upon the grounds of adultery, physical cruelty, substance abuse and abandonment, as well as living continuously apart for one year (no fault). A person defending an allegation of fault may choose to admit the fault, and claim that their spouse knew about the fault and forgave them for it (condoned the behavior) thus negating any possible penalty.

A person claiming forgiveness must specifically state in their pleadings that their behavior was acknowledged, condoned and forgiven by their spouse and that the parties thereafter resumed normal marital relations. On December 23, 2014 the South Carolina Court of Appeals in the matter of Srivastava v. Srivastava clarified what must be shown to establish that the parties had “resumed marital relations”.

Husband was alleging wife committed adultery and should be permanently barred from receiving alimony. Wife alleged that she told husband of the adultery and he forgave her, only to raise it again as a legal claim in the divorce case to try to avoid an alimony obligation.

The evidence had established that the parties resided together for 14 months after wife disclosed an affair. The court stated that “…in finding condonation, our courts have primarily focused on whether the evidence shows the injured spouse forgave the offending spouse”.

What was critical in this case was the length of time the parties resided after wife disclosed her affair.

Although the relationship between Husband and Wife appears to have been strained, their continued marital cohabitation for a
considerable period of time quite conclusively shows an intention to forgive or condone such conduct. Moreover, Husband admitted that after he learned of Wife’s affair in January 2010, he and Wife attempted marriage counseling twice to work on the marriage. Wife also testified—and Husband has not offered clear and positive proof otherwise—that she has not repeated an adulterous act after admitting to the affair.

The court believed that husband condoned his wife’s infidelity based almost exclusively on a 14 month period of continued cohabitation after he became aware of her indiscretion. They believed that 14 months of cohabitation was conclusive evidence of forgiveness. It is easy to see how they reached this conclusion. After all, if husband did not forgive wife for her affair, why then did he continue to reside with her as husband and wife for over a year?

As can be seen from the Srivastava ruling, forgiveness in divorce can have great financial ramifications. The court of appeals sent the case back to the trial court and ordered the trial court to award wife alimony. Wife’s offending behavior, which would normally prevent her from ever receiving alimony from husband, was obviated by husband’s forgiveness.

Should a party be barred from receiving alimony due to infidelity? That’s another topic altogether!

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