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

Posted Thursday, December 9th, 2010 by Gregory Forman
Filed under Alimony/Spousal Support, Jurisprudence, Of Interest to Family Law Attorneys, South Carolina Specific

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?”

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

  1. Agreed, Greg. Nice to see this pop up after our conversation the other day. I’m dealing with a case now where the opposing party wants to use adultery to bar my client from receiving temporary spousal support. I have no idea what the standard will be.

    1. Ryan:

      A number of my blogs and FAQ’s pop up because someone asks me a legal question in which one might think there is an obvious answer but there isn’t. This is one example. I’ve yet to see anyone note the various burdens of proof for adultery and figured I’d use my blog to point it out. It’s good to have my research in one place for easy future access.

  2. This is not directly related but I have a similar issue. If a party does not allege adultery, may they prove adultery for any purpose, such as fitness of a parent or credibility?

    1. Mr. McDow:
      My understanding is that even if adultery is not offered as a cause of action in the pleadings, either party may introduce evidence as to the improper conduct so long as it is relevant to other matters contained in the pleadings, typically custody.
      Held: a party that seeking custody & a divorce based on one-year’s separation may use evidence of wife’s exposing child to adulterous behavior to demonstrate her unfitness as a parent. Shainwald v. Shainwald, 395 S.E.2d. 441.
      It’s less clear what role such evidence could play in, say, equitible division, but at a minimum it’s not per se inadmissible just because it’s not pled…

  3. Kathy Givens says:

    Can you prove adultery with texts, emails, and Facebook messages & posting relationship status as single and dating?

      1. Jo Allen says:

        can I legally get phone records, & email messages somehow to prove adultry? we have separate phone plans.

  4. Kay says:

    I have evidence that my husband paid for 2 “escorts” while in Atlanta, GA without me. He paid by debit card. Would this be considered adultry in South Carolina? I also have proof that he was on websites for “married and discreet” people.

  5. Chuck Hice says:

    Can my wife and I get our divorce faster if she accuses me of adultery, and I agree that it happened? We have agreed on everything as far as child support goes. We each signed an agreement and had that notorized. Again, does she need to provide proof or can I just agree to it to expedite this situation.

    1. You are not seriously asking me for advice on how to commit fraud on the court?

      1. Megan says:

        I’d like to know the answer to this also. Not to commit fraud but because it actually happened and we both have no interest in being together. We’re both living with other people and just want it over with.

        1. Since it appears your husband is committing adultery, file for an adultery divorce.

  6. Sonya Turner says:

    my husband and I are separated, not legally, but will be a year this month. He was working out of state and met another woman, and ended up getting fired from his job, he had this other woman to drive him back to south carolina and she is now living with him in our home that we shared together and she also transfered from her job out of state to a job in our town. By him having her living in our home is this proof of adultery? My parents live right next door can they and her work records be supeoned to see if it lists my former address. will this be proof?

  7. Deborah says:

    My husband and I are getting a divorce on grounds of adultery. He has admitted to the affair. Our papers say it will be a year before the divorce is final. We thought it would be 90days if the grounds were on adultery, Do both parties of the affair have to go before the judge and admit to the affair in order for this to be done in 90 days or is his admission to this indiscretion enough proof?

    1. Brian Attenborough says:

      this situation applies to my daughter and her husband- his lawyer wants my wife or I to testify that we saw them together ( which is true)
      If she will admit it in court, and that was enough for the court, then we would not have to be the bad guys in her life.
      If we have to testify even if she does admit to adultery , then it will probably impact our visits with grand children

      thanks for your help


  8. I just wanted to ask because my son is in Afghanistan, my sons wife cheated on him during there marriage twice with his best friend she admitted this to me my mother and her mother right before my son left he told her he could no longer take the fact that she cheated on him he started talking to a girl where he was stationed and they met they was talking and has pictures of them kissing on the cheek on Facebook which she found now she wants to take all his money and get grounds of divorce on adultry from him what to do both done wrong but how to prove it in court of law that she did because we have no proof just her telling everyone and him that they did it but he the best friend is on drugs now so how do we have proof if they can prove he is on drugs and not a reliable witness even though she admitted to us she did twice

  9. And how do I keep rights to see my grandbaby who is so much a part of my life and my sunshine when I get up everyday what about the kids why does it have to be so hard for them what can I do as a mother and grandmother for my grandkids

    1. Matt says:

      there are no such things as rights of a child to a grand parent in the state of SC. No matter if the grand parents are from the maternal or paternal side. The only way that the grand parents can step in during a situation like that, is one of the following ways: the parents are drug addicts or put the kids at risk and this is proven in court and the kids are then awarded to the grand parents by the court and judge, or if the parents relinquish their rights to the child and sign off on the grand parents “taking temporary custody” of the said child during a given amount of time, whether that time be permanent or temporary, is again up to the parent(s) of said child, court, and said judge, and said grand parent(s) all being in complete and total agreement. Unfortunately, good luck with that situation happening, because the evil truth of the matter of today’s world is this, women throw everything they can into the faces of the father of the child/children in court, as if the damn kids aren’t going through enough, (I personally went through this hell both as a child at the age of 16, and then as a parent fighting over a 2 year old daughter when I was the age of 29. Or thew shoe is on the other foot and the man throws everything and anything against the woman in the court room and against the walls just simply out of pure spite and to see if it will actually stick to the wall. Welcome to the “Bible Belt of The South” and come Hell or High Water, it’s less than a 6% chance that a man can or ever will get more than share-custody of a child in any situation, regardless the character, morals, employment, stability, mental state of mind, physical state, and I can go on and on as far as things that a man can and has to prove that there are issues with every single damn one of them to get even half of a fighting chance to get to see his kids more than 4 days a month, much less custody. So sit back and think about that grand parent who had the nerve to post this comment. Try that shoe on for size. I’m not doubting your love and or affection for said child, but sit back and try to think about it from the sides of both of the parents of the child, and then put yourself in their shoes, both of them, not just the man’s or the woman’s only, but take a good long hard and honest look from both sides of the fence and then you might just surprise yourself and realize that you should have never gotten involved in the situation to begin with. And that’s another problem that really erks my nerves with the society and people of today, get one small problem and then “OH, honey, lets go and get a divorce….I loved you yesterday, but not today, and lets make 5 kids with each other, and be into debt up to half a million dollars together, and then lets go and spend another 50K each and hire some overpriced attorneys whom are nothing more themselves, but sad and lonely people that have communication issues and issues within themselves but refuse to go and get help so they just sit there and prey on others and pretend to be some sort of “higher power” cuz Heaven forbid I would have said they “pretend to be God” and then this would have started an entirely new thread and so on and so on. this is just my 2 cents. take it as is is, or with a grain of salt, or like i love to do and with a shot of liquor……preferably Jack Daniels straight……or don’t take it at all. Just remember one thing, before anyone who reads this goes and gets their panties in a bunch……..the same rights that you chose to invoke to make comments on here, I have the same rights, I did not threaten anyone, nor falsely accuse any such person or other living creature…….just a person whom was eager to offer his personal and ‘true life’ comments on such said issue.

  10. justin collard says:

    If my wife and mother of two children has anounced she is three monthes pregnant with her new boyfriend is that grounds for adultry….I’ve bee celibate for eleven moths since we split

  11. Mike says:

    What is the advantage of using adultery as grounds for a divorce if there are no children. How does this affect the division of assets?

  12. Cheryl says:

    My husband admits adultery and has a picture of himself with the other woman at a restaurant and also has a racy picture of the woman in a hotel room. Both of the pictures were taken while he was in England. Will this be sufficient to prove adultery?

  13. Sadie Watkins says:

    My husband forced a third party (female) into our bedroom by getting me severely intoxicated and threats of violence if I did not comply. He then videoed my interactions with her (his voice is in background ‘instructing’ me). I’m now separated and headed for divorce. He told me about this video and says it’s his proof of MY adultery and I’ll get nothing. He’s had numerous affairs (without my presence) but I have no proof. Can this video count as adultery against me since he was present and filming?
    Yes, he is sick and I’ve been subjected to 12 years of severe emotional and physical abuse. I have no proof.

  14. Katherine says:

    I also live in SC and was wondering if my husband just admitted to adultry would it be enough for the courts. I’ve had to wait to ask for a divorce due to our financial situation. Mine is still not good but at the time it was non existent. He also abused me physically in the intimate sense knowing I had no where to go at the time. Now he has change ,some, but I can’t stay with him now that I have a slight chance of getting out. I don’t want to wait the year that is required in my state but I have no proof of anything. Also living apart with our finances seems almost impossible. At least devorced I might qualify for help.

  15. Susie says:

    I am inquiring for my son. He and his wife has been married for a number of years, and 3/4 of that time, she has had a boyfriend my son didn’t know about. She had made plans well ahead of leaving and filed for legal separation. My son had 1 1/2 weeks to get a lawyer and affidavits together for the hearing. She left on grounds of abuse and has tried to make my son into some kind of a monster, which he is not. Since then, we have found out who her boyfriend is, how long they have been seeing each other. A family member of his even gave us testimony of all that she knew. His wife (now divorced) has proof of their affair, but won’t share it with us. We have GPS reports of her being at his house for hours, and his lawyer has phone records that haven’t been revealed yet. Does my son not have enough evidence to prove inclination and opportunity?

  16. Roger says:

    I wind up getting a STD/HPV and I have only been with my wife for the last 23+ years, is this proof of her infidelity/adultery? Is this grounds and proof for a divorce? We were separated for 18 months and I think she was with other men during that time. Her roommate told me she was banging the neighbor and I found a text message in her phone before she deleted the message being thanked from the neighbor for cleaning his pipes. I don’t have that text, however I did in fact read it with my own eyes and confronted her with it back then and she erased it. She would not answer my question about the cheating sexual acts with the neighbor. We got back together and I just now found out about the STD. We have been back together for over 1.5 years. Can I use this as proof of adultery?

  17. Janet byrd says:

    This is primarily in response to Matt. Men win custody of their children often in South Carolina. The key is having an experienced domestic attorney who is familiar with what proof is necessary to do so. It is a balancing act between the two parents fitness to parent as indicated by many factors with the primary consideration of what is best for the children. As to all the other questions. Each case is different. It would be crazy for an attorney to answer individual questions without sitting down and thoroughly looking at the facts. Seek the advise of a licensed attorney who regularly practices domestic law. There’s a reason we go to law school so long. The law is complicated. I have personally won many custody cases for both men and woman. It depends on the facts.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.




Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.