Adultery in Family Court

What is the consequence of a finding of Adultery in the South Carolina Family Court?

Extramarital relationships have become common place. An emphasis on fidelity and morality has long disappeared and is considered “old fashioned”. While our president models for us a new “standard” of morality, our Family Courts still take marriage vows seriously.

Adultery in South Carolina is a criminal offense and can carry up to one year in jail. Adultery is defined as “…living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is lawfully married to some other person. S.C. Code Ann. § 16-15-70

An adulterous relationship is considered immoral in South Carolina and a finding of adultery by a trial court may effect an award of custody.  In practice, however, our courts or less apt to hold adultery against a party in a custody ruling if the children had never been exposed to the paramour. 

When making an equitable distribution award, the South Carolina Equitable Distribution statute lists 15 separate factors that must be considered by a court in dividing property, one of which is marital fault.  If the adultery was the cause of the break up of the marriage a court would be well within its rights to award the non offending spouse a greater share of marital assets. In practice I have found that a very long marriage will usually be divided 50-50 in spite of a finding of adultery.  Shorter term marriages, ending after 10-15 years with small children being cared for by one party, will be more likely to be impacted by a finding of adultery.  This is for the obvious reason that the one of the parties is going to be stuck with limited income and resources while being primarily responsible for raising the kids. 

The South Carolina Alimony statute lists 13 factors that a court must consider when awarding alimony, one of which is marital fault. An award of alimony will often be impacted if adultery, or other marital fault, has been proven. This is especially true of long term marriages where a supported spouse has given up a career to raise children and work in the home and, as a result, cannot now realistically become self supporting. In a sense, the offending spouse is being charged a premium for breaking their marriage vows and leaving their spouse in a financially vulnerable position. 

Finally, a finding of adultery will bar the offending spouse from receiving alimony. In my opinion this is a rule designed to punish women. A finding of habitual drunkenness, violence, or abandonment will still permit an offending spouse to receive alimony, but stray one time from the marriage and all forms of support are denied. 

Guy Vitetta

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