When people are suspicious of their significant other cheating, or catch them cheating, they usually wonder how they will be able to prove the infidelity in family court. Clearly, sexual intercourse is adultery but what about other forms of infidelity? South Carolina courts have stated that South Carolina hasn’t determined exactly what other acts may constitute adultery. For example, the South Carolina Supreme Court found that homosexual activity can constitute adultery, which gives the impression that oral sex is enough for a divorce based on the grounds on adultery. However, because the actual sexual act is rarely proved it most likely won’t make a difference in most cases.
Proving Adultery in South Carolina
Because sexual conduct mostly, and should, occur behind closed doors, it is nearly impossible to find direct proof of the cheater in the act. However, in South Carolina one only needs to show circumstantial evidence, that the spouse had an inclination to commit adultery and that he or she had the opportunity to do so. These requirements are referred to by family lawyers as the “inclination and opportunity.”
What is inclination?
When does spending time with a member of the opposite sex constitute more than friends? People are allowed to have friends of the opposite sex which means that just because they are behind closed doors together doesn’t mean there is infidelity. Because of this reason the courts require proof that the spouse had the “inclination” or the character or to cheat. Proving inclination can be done several ways: love letters, texting, emails, or other written material may give rise to evidence of infidelity. Joining online dating sites or dating applications on one’s phone may also be used as evidence. Other examples would be a private investigator having photographs of the cheating party holding hands with a paramour or kissing and occasionally there is evidence of over night stays which would prove the individuals are more than friends.
What is Opportunity?
To prove “opportunity,” you must prove that the cheating spouse and his lover were behind closed doors long enough for there to be time to commit a sexual act. There are no black and white rules for exactly what needs to be proven. The most concrete evidence of an opportunity to commit adultery comes through a private investigator who obtains footage or pictures of the cheaters being in the same home or a hotel room. Other forms of evidence can come from neighbors or friends; however their testimony could be biased and won’t give us the documentation and hard proof we can obtain from a private investigator. Other forms of evidence of opportunity are text messages, Facebook posts or pictures, credit card statements.
Is there A Defense to Adultery?
Yes, it is called condonation and can be a defense against a divorce. Condonation is when one party, who has been cheated on, takes actions that imply that he condoned the adulterous behavior and that the parties are reconciling. If the infidelity was discovered, you could forfeit any claim of adultery if you reconcile with the cheating spouse. Condonation can occur by having sexual relations with the spouse, letters or emails forgiving the infidelity, or moving back in together. Again, there are no clear, black and white rules on condonation either and it will but up to the Judge to determine the facts and decide whether adultery was forgiven.
Advice If You Think Your Spouse Is Cheating
The Attorneys at Thrower & Schwartz strongly recommend consulting with them. Every case has different facts and circumstances, and we need to learn specific facts of your situation to advise you how to proceed. We may recommend hiring a private investigator, having a home computer looked at by a computer expert for evidence of infidelity or tracking down witnesses. Depending on the facts of your specific case there could be numerous ways to discover what you are looking for and to gather evidence of it for court. Please at least consult with an attorney before you go searching alone.