Will the rise of “swinging” in the Lowcountry lead to a revival of the connivance defense to South Carolina’s adultery bar to alimony?

Professor Roy T. Stuckey’s excellent guidebook, Marital Litigation in South Carolina: Substantive Law (3rd. Ed), has little use for the defense of connivance, concluding its section on the defense, that it “should not be utilized except where it would be manifestly unjust to penalize a basically innocent but deceived spouse.”  However, in an era in which Charleston’s suburbs sometimes resemble the upper-middle class suburbs of my 1970’s Los Angeles upbringing, I’m inclined to give this defense greater appreciation.

Stuckey’s book looks to the definition of provided in CORPUS JURIS SECONDUM:

Connivance in the law of divorce is the complaintant’s consent, express or implied, to the misconduct alleged as a ground for divorce.  A corrupt intent on the part of the complaintant that the party at fault should engage in misconduct is generally considered to be an essential element of connivance.  If the consent was actively given, the intent is impliedly corrupt and the defense is complete.

C.J.S. Divorce § 86 (1986).

Unlike the defense of collusion, which requires that the act be “done with the knowledge or assent of the plaintiff for the purpose of obtaining a divorce the court shall not grant such divorce” (S.C. Code Ann. § 20-3-20), connivance does not require that the improper act be done for the purpose of obtaining the divorce.

My first encounter with the connivance defense was in seeking alimony for a woman from one of Charleston’s nicer suburban developments.  She and her husband were swingers–she insisted at her husband’s request–and her husband was arguing that this adultery barred her from alimony.  See 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.”)  While I could have raised the defense of recrimination–the defense that both parties are guilty of the same fault-divorce ground–that defense does not remove adultery’s bar to alimony. See, Spires v. Spires, 296 S.C. 422, 373 S.E.2d 698 (Ct. App. 1988).  However since my client’s adultery was something her husband actively encouraged, I pled connivance as a defense and she was successful in obtaining alimony.

From talking to other family law attorneys, there been an upswing the past decade in the amount of key parties and mate-swapping going on.  Often these most un-Bible-belt acts are taking place in the area’s wealthiest neighborhoods–the very neighborhoods in which residents have sufficient income and wealth to justify alimony claims.  While these “swinging” spouses weren’t deceived into their adultery, it does seem unjust to allow this agreed-upon behavior to act as a bar to alimony.  If the “swinger” culture keeps root in Charleston, the connivance defense is due for a revival.

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