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What is the burden of proof for adultery divorce in South Carolina?

Has anyone else noticed that our South Carolina appellate courts have made a hash out of the burden of proof necessary to obtain a divorce on the grounds of adultery?

Three reported South Carolina cases state adultery must be proven by “clear and convincing evidence.” Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854, 856 (Ct.App. 1996) (lower court properly denied divorce “finding Wife failed to prove adultery by clear and convincing evidence”); Anders v. Anders, 285 S.C. 512, 331 S.E.2d 340, 342 (1985) “evidence utterly fails to meet the requisite clear and convincing standard to prove adultery by circumstantial evidence”); Wilson v. Wilson, 285 S.C. 481, 330 S.E.2d 303, 304-05 (1985) (“evidence falls far short of meeting the clear and convincing standard to prove adultery”).

Perhaps, however, the standard is mere preponderance of the evidence. Perry v. Perry, 301 S.C. 147, 390 S.E.2d 480, 481 (Ct.App. 1990) (rejecting wife’s claim that her “adultery is not supported by the preponderance of the evidence”); Smith v. Smith, 262 S.C. 291, 204 S.E.2d 53, 55 (1974) (“It is our conclusion, after reviewing the evidence in this case, that the wife has failed to establish by the preponderance of the evidence that her husband was guilty of adultery.”

Then there are the twenty-seven reported cases citing a hybrid burden of proof that I have never encountered elsewhere: “clear preponderance of the evidence.”  To cite a few, Gorecki v. Gorecki, 387 S.C. 626, 693 S.E.2d 419, 422 (Ct.App. 2010) (“proof of adultery must be clear and positive and the infidelity must be established by a clear preponderance of the evidence”); Brown v. Brown, 379 S.C. 271, 665 S.E.2d 174, 178 (Ct.App. 2008) (“Proof of adultery as a ground for divorce must be clear and positive and the infidelity must be established by a clear preponderance of the evidence”); McLaurin v. McLaurin, 294 S.C. 132, 363 S.E.2d 110, 111 (Ct.App. 1987) (“To obtain a divorce on the ground of adultery in South Carolina, the proof of the alleged adultery must be clear and positive, and the infidelity must be established by a clear preponderance of the evidence”); Miller v. Miller, 280 S.C. 314, 313 S.E.2d 288, 290 (1984) (“Adultery must be proved by a clear preponderance of the evidence”).

How can South Carolina have three different burdens of proof to prove adultery?  Is there a different burden of proof to prove adultery to obtain a divorce versus proving adultery to deny alimony?  The distinction between “mere preponderance of the evidence” and “clear and convincing evidence” is confusing enough.  What the heck is “clear preponderance of the evidence?”

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