South Carolina treats adultery as one of the most consequential factors in divorce proceedings. Under S.C. Code § 20-3-130, a spouse proven guilty of adultery is permanently barred from receiving any form of alimony, regardless of financial need or marriage length. Additionally, adultery serves as a fault ground that eliminates the standard one-year separation requirement, allowing the innocent spouse to file for divorce immediately. South Carolina remains one of only a handful of states where adultery is still technically a criminal offense under S.C. Code § 16-15-60, carrying potential fines up to $500 and imprisonment up to one year, though criminal prosecutions are virtually nonexistent in practice.
Key Facts: Adultery Divorce in South Carolina (2026)
| Factor | Details |
|---|---|
| Filing Fee | $150 statewide (as of March 2026, verify with local clerk) |
| Waiting Period | None for adultery (fault ground); 1 year for no-fault |
| Residency Requirement | 1 year if one spouse is SC resident; 3 months if both reside in SC |
| Grounds for Divorce | Adultery, desertion (1 year), physical cruelty, habitual drunkenness, 1-year separation |
| Property Division | Equitable distribution (15 statutory factors under § 20-3-620) |
| Alimony Impact | Absolute bar on alimony for adulterous spouse |
| Evidence Standard | Clear and convincing proof of inclination and opportunity |
| Criminal Status | Misdemeanor (fines up to $500, imprisonment up to 1 year) |
How South Carolina Law Defines Adultery
South Carolina defines adultery as voluntary sexual intercourse between a married person and someone other than their spouse. Under S.C. Code § 16-15-70, the law recognizes adultery as habitual carnal intercourse between individuals while either of them is in a marital relationship with someone else. Courts do not require proof of actual sexual intercourse in every case. Evidence demonstrating sexual intimacy without proving the specific act of intercourse may still establish grounds for divorce based on adultery.
The timing of the alleged adultery matters significantly under South Carolina law. Adultery remains a valid ground for divorce and a bar to alimony even during separation. Under S.C. Code § 20-3-130, no alimony may be awarded to a spouse who commits adultery before either: (1) the formal signing of a written property or marital settlement agreement, or (2) entry of a permanent order of separate maintenance and support. Beginning a romantic relationship during separation, before either of these legal cutoffs, qualifies as adultery and triggers the permanent alimony bar.
Proving Adultery in South Carolina: The Inclination and Opportunity Standard
South Carolina courts require clear and convincing evidence of both inclination and opportunity to prove adultery. This evidentiary standard is higher than the preponderance of evidence used in most civil matters but lower than the beyond-a-reasonable-doubt standard in criminal cases. The South Carolina Supreme Court has consistently held that adultery can be proven through circumstantial evidence, as direct evidence of catching a spouse in the act is rarely available.
Evidence of Inclination
Proving inclination requires demonstrating that your spouse had a romantic or sexual disposition toward another person. Courts accept various forms of evidence including:
- Text messages, emails, or love letters expressing romantic feelings
- Photographs showing physical affection such as hand-holding or kissing
- Active profiles on dating applications while married
- Testimony from witnesses who observed romantic behavior
- Social media interactions, check-ins at the same locations, and public displays of affection
- Sexting communications (while not adultery itself, sexting proves inclination)
Evidence of Opportunity
Proving opportunity requires showing that your spouse and the third party were alone together for sufficient time to engage in sexual activity. Strong evidence typically includes:
- Surveillance footage or photographs showing the adulterers entering the same residence or hotel room
- Hotel receipts, credit card statements, or travel records
- Testimony from neighbors, friends, or co-workers
- GPS tracking data or phone location records
- Private investigator documentation of overnight stays
Hiring a private investigator is common in South Carolina adultery cases. Investigators can obtain surveillance footage, photographs, and documentation that establishes both elements. The cost of a private investigator typically ranges from $50 to $150 per hour, with comprehensive surveillance packages costing $2,000 to $10,000 depending on case complexity.
Adultery and Alimony: The Absolute Bar
South Carolina imposes one of the strictest alimony consequences for adultery in the United States. Under S.C. Code § 20-3-130, a spouse proven guilty of adultery is permanently barred from receiving alimony. Unlike other fault-based factors that courts weigh when determining alimony, adultery functions as an absolute prohibition with no judicial discretion.
The alimony bar applies regardless of:
- The length of the marriage (even marriages exceeding 20 years)
- The adulterous spouse's financial need
- The income disparity between spouses
- Whether the adultery caused the marriage breakdown
- The innocent spouse's own conduct (unless they also committed adultery)
When Both Spouses Commit Adultery
When both spouses have committed adultery, neither party can receive alimony under South Carolina law. The South Carolina Supreme Court confirmed this holding in RGM, 306 S.C. at 150, 410 S.E.2d at 567. The bar does not depend on who cheated first or whose affair was more egregious. Each spouse's adultery independently triggers the alimony prohibition.
Types of Alimony Affected
The adultery bar applies to all forms of alimony under S.C. Code § 20-3-130:
- Periodic alimony (terminable on remarriage, cohabitation, or death)
- Lump-sum alimony (finite total paid in one or multiple installments)
- Rehabilitative alimony (support during job training or education)
- Reimbursement alimony (compensation for supporting spouse through education)
Pending Legislation (2025-2026 Bill 3078)
The South Carolina legislature has introduced Bill 3078 during the 2025-2026 session to amend Section 20-3-130. This bill would allow courts to award alimony in certain circumstances even when a party commits adultery. The bill remains pending and has not been enacted. Until any amendment passes, the absolute bar remains in effect.
Adultery and Property Division
South Carolina follows equitable distribution principles under S.C. Code § 20-3-620, dividing marital property fairly rather than equally. The statute lists 15 factors courts must consider, including marital misconduct such as adultery.
How Adultery Influences Property Division
Under S.C. Code § 20-3-620(B), courts consider marital misconduct or fault of either or both parties, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage. Adultery does not automatically entitle the innocent spouse to a larger share. Courts evaluate whether the affair:
- Depleted marital assets (hotels, gifts, travel with the affair partner)
- Caused dissipation of marital property
- Contributed to the marriage breakdown
- Had direct monetary impact on the marital estate
Typical Property Division Outcomes
In long-term South Carolina marriages, deviations greater than 60/40 are rare even when adultery is proven. Courts focus on economic impact rather than punishment. A spouse who spent $50,000 of marital funds on an affair partner may see that amount credited to the innocent spouse. However, adultery without proven financial impact typically does not significantly alter the property division.
| Scenario | Typical Division Range |
|---|---|
| No fault, long marriage | 50/50 to 55/45 |
| Adultery, no economic impact | 55/45 to 60/40 |
| Adultery with dissipation | 60/40 to 65/35 |
| Adultery plus hidden assets | 65/35 or greater |
Adultery and Child Custody
South Carolina courts apply the best interest of the child standard under S.C. Code § 63-15-240 when making custody determinations. Adultery alone does not disqualify a parent from custody. The statute explicitly states that courts shall not consider conduct of a proposed custodian that does not affect his relationship to the child.
When Adultery Affects Custody
Adultery may influence custody decisions when it:
- Exposes children to inappropriate situations
- Demonstrates poor judgment affecting parenting ability
- Involves introducing children to affair partners prematurely
- Results in neglect of parental responsibilities
- Causes emotional harm to the children
In close custody cases between two fit parents, a judge may use one parent's adultery as a tiebreaker. A parent's morality remains a consideration, though not a major factor in most cases.
Best Interest Factors Under South Carolina Law
South Carolina Code § 63-15-240(B) lists 13 factors courts consider, plus a 14th allowing consideration of any other relevant factors. Key factors include:
- The temperament and developmental needs of the child
- Each parent's capacity to understand and meet the child's needs
- The stability of existing and proposed residences
- The mental and physical health of all individuals involved
- Whether domestic violence or child abuse has occurred
Eliminating the One-Year Waiting Period
Filing for divorce based on adultery eliminates South Carolina's standard one-year separation requirement for no-fault divorce. Under S.C. Code § 20-3-10, adultery is a fault ground that allows immediate filing without waiting for separation.
Timeline Comparison
| Divorce Type | Waiting Period | Minimum Timeline to Final Decree |
|---|---|---|
| No-fault (1-year separation) | 12 months | 13-15 months |
| Adultery (fault) | None | 90 days to 6 months |
| Adultery (contested) | None | 6-18 months |
After filing a fault-based divorce, South Carolina requires a 90-day period before scheduling a final hearing. This gives both parties time to complete discovery, negotiate settlement, and prepare for trial if necessary. Uncontested adultery divorces where the other spouse admits fault can finalize in approximately 90-120 days. Contested cases where adultery is disputed may take 6-18 months or longer.
Defenses to Adultery Allegations
South Carolina recognizes several defenses that may defeat an adultery claim or mitigate its consequences.
Condonation
If you knew your spouse committed adultery and continued living together as husband and wife, you may have condoned the adulterous activities. Condonation requires knowledge of the adultery, forgiveness (either express or implied), and resumption of marital relations. A spouse who condones adultery forfeits the right to use that adultery as grounds for divorce or to bar alimony.
Recrimination
If both spouses committed adultery, the doctrine of recrimination historically barred either spouse from using adultery as grounds for divorce. Modern South Carolina courts have relaxed this doctrine, but mutual adultery still means neither party can receive alimony.
Connivance
If a spouse facilitated or encouraged the other spouse's adultery, they cannot use that adultery as grounds for divorce. This defense is rare but may apply when one spouse sets up or entraps the other.
Statute of Limitations Considerations
South Carolina does not impose a strict statute of limitations on using adultery as grounds for divorce. However, courts may give less weight to stale adultery claims. An affair from 15 years ago that the innocent spouse discovered shortly after it occurred but chose to forgive carries less weight than recent adultery.
Criminal Adultery in South Carolina
South Carolina is one of approximately 16 states where adultery remains a criminal offense. Under S.C. Code § 16-15-60, individuals convicted of adultery face fines up to $500 or imprisonment from six months to one year. Despite remaining on the books, criminal prosecutions for adultery are virtually nonexistent. Law enforcement agencies rarely investigate adultery cases, and prosecutors almost never pursue criminal charges.
The criminal statute has no practical impact on divorce proceedings. Family courts treat adultery as a civil matter affecting alimony, property division, and grounds for divorce rather than a criminal matter requiring prosecution.
Residency Requirements for Filing
Under S.C. Code § 20-3-30, the plaintiff must meet residency requirements before filing for divorce:
- If only one spouse lives in South Carolina: 1 year of residency before filing
- If both spouses live in South Carolina: 3 months of residency before filing
- Military personnel stationed in South Carolina: Continuous presence for the required period satisfies residency regardless of intent to remain permanently
Filing Fees and Court Costs
The filing fee for divorce in South Carolina is $150 statewide, paid to the Clerk of Court when submitting your Summons and Complaint. The defendant pays no fee to file a response.
As of March 2026, verify all fees with your local South Carolina family court clerk. Additional costs may include:
| Expense | Estimated Cost |
|---|---|
| Filing fee | $150 |
| Process server | $50-$125 |
| Temporary hearing fee | $25 |
| Parenting class (if children) | $50-$150 |
| Private investigator | $2,000-$10,000 |
| Attorney fees (contested) | $10,000-$30,000+ |
Fee Waivers
The $150 filing fee may be waived for households earning below 125% of federal poverty guidelines. For 2026, this means approximately $19,500 for a single person or $40,000 for a family of four. Request a fee waiver using South Carolina Form SCCA/400 (Motion and Affidavit to Proceed In Forma Pauperis).
Frequently Asked Questions
Does adultery automatically mean I lose everything in the divorce?
No, adultery does not mean losing everything in a South Carolina divorce. The primary consequence is the permanent alimony bar under S.C. Code § 20-3-130. Property division follows equitable distribution principles where adultery is one of 15 factors. Courts rarely deviate beyond 60/40 even with proven adultery unless significant financial dissipation occurred.
Can I still get alimony if my spouse also cheated?
No, when both spouses commit adultery, neither party can receive alimony under South Carolina law. The South Carolina Supreme Court confirmed in RGM that the alimony bar applies independently to each adulterous spouse. The timing, severity, or circumstances of either affair do not change this outcome.
How long after separation can I date without it being adultery?
Dating during separation qualifies as adultery until you reach one of two legal cutoffs: (1) formal signing of a written property or marital settlement agreement, or (2) entry of a permanent court order. Even after one year of separation, romantic relationships before these cutoffs can bar alimony and serve as grounds for fault divorce.
Do I need to prove my spouse had sex with another person?
No, South Carolina law does not require direct proof of sexual intercourse. Courts accept circumstantial evidence showing both inclination (romantic disposition toward another person) and opportunity (time alone sufficient for sexual activity). Evidence of sexual intimacy without proving the specific act of intercourse can establish adultery grounds.
Will adultery affect my custody rights?
Adultery alone typically does not disqualify a parent from custody under S.C. Code § 63-15-240. Courts focus on the best interest of the child and do not consider conduct that does not affect the parent-child relationship. However, adultery may influence custody if it exposed children to inappropriate situations or demonstrated poor judgment affecting parenting ability.
Can my spouse deny adultery even with evidence?
Yes, your spouse can deny adultery, requiring you to prove the allegations by clear and convincing evidence at trial. If your spouse contests the adultery claim, you must present sufficient evidence of both inclination and opportunity. Private investigator documentation, text messages, photographs, and witness testimony commonly establish adultery over the accused spouse's denial.
Is a one-night stand considered adultery in South Carolina?
Yes, a single instance of sexual intercourse with someone other than your spouse constitutes adultery under South Carolina law. Courts do not require habitual or repeated conduct. One proven instance of adultery triggers the alimony bar and establishes grounds for fault-based divorce.
Can I file for divorce immediately if I catch my spouse cheating?
Yes, adultery is a fault ground under S.C. Code § 20-3-10 that eliminates the one-year separation requirement. You may file for divorce immediately upon discovering adultery, provided you meet the residency requirements (1 year if only you live in SC, 3 months if both spouses live in SC). After filing, a 90-day period must pass before the final hearing.
Does my spouse's affair partner face any legal consequences?
South Carolina abolished criminal conversation and alienation of affection lawsuits, meaning you cannot sue your spouse's affair partner for damages. While adultery remains technically criminal under S.C. Code § 16-15-60, prosecutors virtually never pursue charges. The affair partner faces no practical legal consequences in modern South Carolina practice.
How do private investigators help prove adultery?
Private investigators gather evidence establishing inclination and opportunity. They conduct surveillance to document overnight stays, photograph physical affection, track movements, and compile records of suspicious behavior. Investigator costs typically range from $50-$150 per hour, with comprehensive surveillance packages costing $2,000-$10,000. Their documentation often provides the clear and convincing evidence courts require.