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Grounds for Divorce in SC: Part One - Adultery

on Thursday, 04 April 2013. Posted in Legal News

South Carolina recognizes four fault-based grounds for divorce and one no-fault ground (separation). 

The four fault-based grounds are:

  • Adultery
  • Habitual Intoxication
  • Desertion
  • Physical Cruelty.

Below you will find our legal research regarding the first fault-based reason for divorce, adultery: 

  1. Opportunity and Disposition - Proof that a spouse and the spouse's paramour are both disposed to commit adultery (i.e. previous admitted adultery) and the opportunity has existed for them to satisfy their inclinations is sufficient to support a finding of adultery. Hartley v. Hartley, 355 S.E.2d 869, 871 (S.C. App. 1987). Because of the “clandestine nature” of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses is rarely possible, so direct evidence is not necessary to establish the charge. Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct. App. 1987).
  2. No Requirement of Intercourse: South Carolina has rejected the argument equating adultery with intercourse; sexual intimacy is enough. Nemeth v. Nemeth, 325 S.C. 480, 486, 481 S.E.2d 181, 184 (Ct. App. 1997) (adultery proven where wife took a cruise and stayed in a cabin with a man other than her husband).
  3. Evidence placing a spouse and a third party together on several occasions, without more, does not warrant a finding of adultery. Fox v. Fox, 277 S.C. 400, 288 S.E.2d 390 (1982).
  4. Rule requiring corroboration of adultery allegations may be relaxed when it is evident that collusion does not exist. Brown v. Brown, 215 S.C. 502, 512, 56 S.E.2d 330, 335 (1949).
  5. Where there is no collusion (respondent contests adultery allegation), uncontradicted admission against interest by respondent of having committed adultery is sufficient, in and of itself, to support a finding of adultery, even without corroboration. Harvely v. Harvely, 279 S.C. 572, 310 S.E.2d 161 (Ct. App. 1983); McLaurin v. McLaurin, Op. No. 1050 (S.C. App. filed 11/23/87).
  6. “Parking” Presumption: When a man and a woman park by themselves at night in lonely places and purposely sit very close together, unless some other reason appears for their behavior, disposition and opportunity can be inferred. Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114 (App. 1989); Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74 (Ct.App.1985) (the finding of adultery was affirmed where the only evidence of the disposition to commit adultery was a statement by the appellant that he and a woman "were living together just like they were married.").
  7. Adultery may be proven by either direct or circumstantial evidence or a combination of the two. Circumstantial evidence is just as good as direct evidence if it is equally convincing and establishes the disposition to commit the offense and the opportunity to do so. Anders v. Anders, 285 S.C. 512, 331 S.E.2d 340 (1985); Fulton v. Fulton, 293 S.C. 146, 359 S.E.2d 88 (Ct. App. 1987).
  8. S.C. Code § 20-3-130: alimony terminates upon "continued cohabitation", which means the supported spouse resides with another person in a romantic relationship for a period of 90 or more consecutive days.

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