How to Prove Adultery in South Carolina

In South Carolina family law, adultery remains one of the most consequential fault ground, particularly because of its direct impact on alimony. But proving adultery is not as simple as showing that a spouse was unfaithful in the colloquial sense. The law applies a specific evidentiary framework built on two key elements: inclination and opportunity.

Proving Adultery: Inclination and Opportunity

Because direct evidence of a sexual relationship is rarely available, sex mostly occurs in private and behind closed doors, South Carolina courts allow adultery to be proven through circumstantial evidence. To establish adultery, a party must show both:

1. Inclination
Inclination refers to evidence that a spouse had a romantic or sexual disposition toward a particular person. This can include:

• Text messages or emails of a romantic or sexual nature

• Photographs suggesting an intimate relationship like the parties holding hands

• Admissions by the spouse

In short, inclination demonstrates that the spouse was emotionally or sexually interested in someone outside the marriage.

2. Opportunity
Opportunity means that the spouse had a real chance to engage in sexual relations with that person. Common examples include:

• Being alone together in a private setting (such as a home or hotel room)

• Overnight stays

• Travel together under circumstances suggesting privacy

Opportunity does not require proof that intercourse actually occurred, only that the circumstances made it reasonably possible.

Both elements must be present. Evidence of a close relationship without opportunity is not enough, and mere opportunity without proof of inclination will also fall short. When both are established, however, the court may infer that adultery occurred.  I tell people that you have to show that your spouse wanted to hook up with another person and they had the opportunity to hook up with them.

 Inclination without opportunity would be finding sexual text messages between your spouse and  their ex but that ex lived in another state and they never met up.  They wanted to but you can’t show they had the opportunity to consummate it.

Opportunity without inclination would be present if your spouse went on a work trip with a colleague and stayed in the same hotel but you couldn’t show any romantic texts or communication between them. Thery had the opportunity to consummate it but you can’t show they wanted to.

The Impact of Adultery on Alimony

Adultery carries serious consequences when it comes to alimony. Under South Carolina law, a spouse who commits adultery is barred from receiving alimony. This is a strict rule. If proven, the court cannot award alimony to the adulterous spouse, regardless of need or the other spouse’s ability to pay.

Condonation may apply: If the innocent spouse resumes the marital relationship after learning of the adultery, the defense of condonation can arise, potentially reviving an alimony claim. Expressing forgiveness and a resumption of the marital relationship, including sex, can be indicators of condonation.