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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  • Alimony and swinging are back. Where do I go to pick up a boat sized rust orange Chevy Impala? Can I wear a digital watch again? We’ll see. I suppose it is too much to hope for a community softball game on Sunday afternoon. How tacky it all is.

  • Roy Stuckey

    I do in fact like the defense of connivance. As I state in the book, “it thus makes sense to maintain the defense of connivance.” I do not like the defense of recrimination. What sense is there in making two people continue to be married after both of them have engaged in marital misconduct?

    I agree that the situation you described probably warrants the use of the connivance defense. But I doubt that connivance defenses are really on the upswing among swinging couples. For one thing, in order to establish the defense in South Carolina, you must prove that the act complained of was done for the purpose of obtaining a divorce.

    I am only aware of one reported case in South Carolina where an appellate court upheld the use of connivance as a defense, and it is not a case from any period of swingers. It was a 1920s or 30s case where the wife was accused of committing adultery with the chauffeur. The court allowed the defense of connivance by reaching the conclusion that by allowing his wife to spend so much time alone with the chauffeur, the husband placed his wife in a situation where something sexual was likely to happen. I doubt that a court today would reach the same conclusion — that a woman left alone with a chauffeur would have insufficient willpower to avoid having sex with him.

  • Linda

    I guess I would have questioned whether a spouse who was guilty of adultery, whether s/he successfully raised a defense thereto to the actual divorce (whether connivance or collusion or otherwise), would have still been entitled to alimony.. . .but it appears that you successfully did so in one of your cases with the connivance defense. Was this appealed?

    • It wasn’t appealed because the parties reached an agreement on alimony with neither party disputing that the connivance defense would be valid to any “adultery” that occurred as part of the parties’ agreed-upon swinging.

  • Jessica Boylan

    I have dealt with a case before where the Husband found out that the Wife was texting an alleged paramour, and he encouraged her to have sex with him through text messages and emails. He additionally picked out her lingerie and snuck behind the door and filmed her and the paramour having sex. After this incident, Husband wanted to make his own sex video with Wife, which she did. The judge ruled that Husband condoned Wife’s behavior and that she was entitled to alimony. Although the judge did not expressly mention connivance, the opinion went into depth about husband participated and encouraged Wife to participate in the affair and then attempted to use it against her as the grounds for divorce.

    In terms of swingers, I just had a case where I was able to successfully go forward on the grounds of adultery. In this case, Husband and Wife met at a swingers club, but outlined their ‘rules of play’ when they participated in swinging. I argued that when Husband and Wife followed these mutually agreed upon ‘rules’, they consented to these activities. When Husband began to sleep with women outside of these rules and behind the Wife’s back, she sent a number of text messages and emails that we were able to submit into evidence where she objected to his behavior. Husband continued to sleep with other women despite Wife’s objection, and therefore we were able to show that the Husband’s activities were not consented to by Wife. Husband was not able to show connivance because Wife expressly objected to him swinging ‘outside of their rules’.

  • Jessica Boylan

    I have dealt with a case before where the Husband found out that the Wife was texting an alleged paramour, and he encouraged her to have sex with him through text messages and emails. He additionally picked out her lingerie and snuck behind the door and filmed her and the paramour having sex. After this incident, Husband wanted to make his own sex video with Wife, which she did. The judge ruled that Husband condoned Wife’s behavior and that she was entitled to alimony. Although the judge did not expressly mention connivance, the opinion went into depth about how the Husband encouraged Wife to participate in the affair and then attempted to use it against her as the grounds for divorce.

    In terms of swingers, I just had a case where I was able to successfully go forward on the grounds of adultery. In this case, Husband and Wife met at a swingers club, but outlined their ‘rules of play’ when they participated in swinging after their marriage. I argued that when Husband and Wife followed these mutually agreed upon ‘rules’, they consented to these sex acts with other people. When Husband began to sleep with women outside of these rules and behind the Wife’s back, she sent a number of text messages and emails that we were able to admit into evidence where she objected to his behavior. Husband continued to sleep with other women despite Wife’s objections, and therefore we were able to show that the Husband’s activities were not consented to by Wife. Husband was not able to show connivance because Wife expressly objected to him swinging ‘outside of their rules’.

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