Cheating on your spouse can have enormous consequences, especially if it leads to a divorce.
It can affect everything from alimony and the division of marital property to child custody and even the timeline of the divorce.
Considering the legal consequences of cheating, the law requires that the non-cheating spouse present compelling evidence that the other spouse has been unfaithful. What should you know about the proof that is necessary to demonstrate infidelity? Our Greenville divorce attorney explains.
Motive and Opportunity to Commit Adultery: The Two Criteria
Family law judges take accusations of infidelity seriously. But proving adultery in South Carolina is a different matter than alleging it. A spouse needs far more than mere suspicion.
If you believe that your husband or wife has cheated on you, then you need to be able to present evidence of these two elements:
The spouse had the motive to commit adultery
This means that he or she has shown a desire to have a sexual affair or romantic relationship with someone else.
A non-cheating spouse may meet this standard in numerous ways. For example, there could be conversations between the spouse and his or her romantic interest that prove there was active planning and pursuit of an affair.
Witnesses like friends and family may have heard the husband or wife discuss an intent to commit adultery. Be advised, however, that family and friends are likely to be biased and therefore have their credibility called into question. It’s better to have a neutral third party if possible.
The spouse had the opportunity to commit adultery
In other words, the husband or wife acted, or could have acted, on his or her desire to commit adultery. Typically, this means being able to demonstrate that the spouse and his or her romantic partner were at the same place (especially if they were alone) where they could engage in sexual relations.
An example might be repeated meetings between the two at a hotel, or the two constantly being spotted together. As a general rule, the evidence must be sufficiently definite to identify the time and place of the adulterous conduct, as well as the circumstances under which it occurred.
Is Circumstantial Evidence Enough to Prove Adultery in South Carolina?
If a spouse has direct evidence of adultery, such as a sex tape, this can definitively answer the question of whether adultery has occurred. However, in reality, non-cheating spouses rarely have such clear proof because adultery is by definition a secretive and private act. Spouses often go to great lengths to conceal their affair and may even be able to hide it for years.
Fortunately for the faithful spouse, circumstantial evidence can support allegations of infidelity.
There may be a hotel receipt or reservation confirmation proving the spouse was at a certain place at a certain time.
Financial records are another example. Credit card transactions and other records of purchases can also help substantiate claims of adultery.
Even though cheating spouses are usually discreet in their actions, they often get careless and leave evidence behind of their activities.
You should therefore be on the lookout for:
- An online dating profile
- Use of an alias or nickname to hide your spouse’s identity
- Subscription to a matchmaking service
- Membership in online dating or singles groups
- Comments and posts on social media, especially if they suggest your spouse is single
- Pictures and videos of your spouse holding hands with or kissing another person
Although it is not necessarily required, a husband or wife may wish to hire a private investigator.
An investigator can either uncover proof of an affair or lead the non-cheating spouse to other potential sources of evidence. While a spouse is not obligated to have eyewitness testimony of adultery, it can certainly bolster the claim.
Is Texting Considered Adultery?
Texting is a way of life for nearly everyone, and that includes spouses who are unfaithful in their marriages. Sending sexually explicit text messages, known as “sexting,” is commonplace. Many divorce clients naturally want to know whether sexting in and of itself counts as adultery in South Carolina.
Sexting or exchanging text messages will not be enough to prove adultery in South Carolina.
But it can be proof of a motive or desire to commit adultery.
Sexting clearly shows an attraction between two individuals that is highly likely to result in sexual relations if the chance arises for the two to meet in person. It is therefore a strong piece of circumstantial evidence.
The same is true for other written communications between the cheating spouse and his or her romantic partner. Social media chats, emails, and mobile phone apps like Telegram and WhatsApp can be a treasure trove of evidence. There are even cases in which husbands and wives come clean and admit the affair to their spouses, whether verbally or by written means.
Hiring an Experienced Greenville, SC Divorce Attorney Makes a Difference
If you want to learn more about how to prove adultery in South Carolina, it’s time to speak with divorce attorney J. Michael Turner, Jr. You may already have evidence of an affair, but it’s essential that the evidence be admissible in court. Further, there may be legal strategies that could significantly strengthen your arguments, such as using subpoenas to acquire evidence from third parties.
Our team is experienced in handling divorces with allegations of adultery, so call us today to find out more about how we can serve you.