It should come as no surprise to readers of this blog that adultery is a pretty steady driver of clientele into our offices. It’s unfortunate that infidelity seems to be such a pervasive character flaw in the human species, but as they say, it is what it is. Divorce lawyers simply cannot provide the victims of adultery with the emotional support they so often desperately need; it is nature of a divorce lawyer to review the circumstances of an adultery case dispassionately and with a sympathetic ear, provide counsel on how to best move past the legal unpleasantness, and put them in a position to find happiness on the other side of catastrophe.
It should also come as no surprise that there is a fair amount of misunderstanding out there about what adultery is (or is not), the effects in may have on a divorce, custody, or alimony case, and the steps that attorney and client need to take together to prove adultery has occurred to the satisfaction of the Family Court. Here are a few of the most common questions and answers our Charleston divorce attorneys deal with regarding adultery:
How Do I Prove Adultery?
We should try to dispel one misconception immediately — in most cases, an admission of adultery by the cheating heart is insufficient to prove adultery in South Carolina Family Courts. That is not to say that it never happens, that a divorce is never granted on the basis of admitted adultery, but my experience is that it is rare. Rare enough that I counsel my client’s that pursuing an adultery-based divorce in such manner is a fool’s errand. Yes, other lawyers will disagree with me on this, and everybody has a sister or cousin that got a divorce this way. Let’s set the notion aside, and deal with the only foolproof way to get an adultery divorce, that being providing satisfactory evidence of both “opportunity and inclination.”
“Inclination to commit adultery” means, generally, proving that a spouse was pursuing an adulterous relationship to some degree. Proving inclination can be a relatively easy exercise, particularly in today’s digital world. If someone is inclined to commit adultery, would they not speak with their “significant other” on their telephone from time to time, or even all the time? A divorce attorney can subpoena the cheater’s cell phone records, and discern the identity of a paramour from the pattern of calls, or even by doing a reverse search of the numbers listed therein. If the identity of the paramour is known to our client in advance, this becomes an even simpler task, in that it becomes a matter simply of cataloging and documenting the times and durations of these calls. A married man who spends two hours a night speaking to another woman on the phone is a married man who is inclined to commit adultery.
Other means of proving adultery can be reviewing Internet browsing records; many is the cheating spouse who seems to find his or her way back to those tawdry chat rooms and “Meet Local Girls Looking for Local Hunks” websites. Many cheating spouses don’t spend much time even trying to cover their tracks, and have profiles on the big-name dating sites where they openly flirt and solicit encounters with other eligible “singles.” And I never cease to be amazed at the number of cheating spouses who openly post pictures of themselves in compromising situations on public Facebook profiles. Social media is an absolute goldmine when it comes to proving inclination.
A note, please be cautious when digging for dirt in your spouse’s private computer, emails, or in stealing passwords to find otherwise private materials. You really could be breaking the law. Always consult with an attorney first.
“Opportunity to commit adultery” can be a bit more difficult and expensive. You will almost always require the assistance of an experienced private investigator, whose services you should definitely coordinate with your divorce attorney. The private investigator’s task is to capture documentary evidence of the adultery, through photographs, videos, and personal observations. This may take time, especially if your cheater is the cautious type, but our investigators almost always get their (wo)man. The evidence being sought is that the spouse was alone for some period of time with a person with whom he or she was inclined to commit adultery. No smoking guns necessary. The opportunity element is usually satisfied by pictures of the cheaters entering a home or room or the like alone together, with their cars parked outside, the lights going out, and one or the other not leaving until the next morning.
If I Can Prove Adultery, Can I Get Divorced in 90 Days?
Yes and no.
Yes, you can, but really only if we can resolve all of the issues associated with your divorce in that 90 window. This usually only happens in a true “uncontested divorce,” where both spouses walk away from the marriage with exactly what they brought in. If you have kids together, if you have any significant assets or debts together, if one spouse is seeking alimony or reimbursement of fees from the other, the 90 day divorce is an absolute impossibility.
What Advantage Do I Gain By Proving Adultery?
There can be a few advantages; it ultimately will be up to the client to decide whether or not the advantages gained by proving adultery outweigh the potential costs (both emotional and financial).
The single biggest impact of a finding of adultery is that an adulterous spouse is absolutely barred from receiving alimony. This impact may be of no significance to your case at all, if neither spouse seeks alimony, if the marriage is of short duration, if income potentials are virtually the same, etc. Or it could be the single biggest element of your case, i.e., long-term marriage, income disparities, etc. The loss of alimony to a financially-dependent spouse can be devastating and far-reaching. If you are on either end of that equation, payor or payee, consult a divorce lawyer immediately.
Proof of adultery could have some impact on a child custody case, particularly if the adulterous spouse is exposing the children to the his or her paramour. In technical legal jargon, this is a huge no-no, and could cost a parent in terms of visitation time with the children or even result in a loss of custody. Being exposed to “new mommies and daddies” can have a significant and long-term impact on the children, who are not emotionally equipped to deal with such adult behaviors, and in some cases, could even expose the children to unsafe or abusive behaviors from the paramour. Family Court judges will reflexively and automatically take steps to prevent this sort of exposure, and censure the offending parent accordingly.
Proof of adultery may also have some impact on the equitable division of marital property, but usually not to the degree that laypeople may imagine. As a general rule of thumb, the division of marital property starts at a 50/50 split; I have witnessed marital fault of the most egregious variety (i.e., serial adultery) push this split as far as 60/40, but anything beyond that would generally require some seriously extenuating circumstances.
Are There Reasons to Not Pursue an Adultery Divorce, Even If I Can Prove Adultery?
In most cases, a contentious fight over marital fault can push an otherwise “run of the mill” divorce over the edge into bloodsport. For some litigants, this is desirable, as punishment of sorts for a faithless spouse (hell hath no fury and so on and so forth). However, my experience has taught me that most clients are not best served by the pursuit of vindictive litigation, and whatever benefits they may derive from the fight are short-lived and outweighed by the negatives.
This can be especially true in divorces that involve children. Like it or not, the cheater will remain the children’s parent, and will remain a part of their lives (and by extension, yours) until they grow up, graduate, get married, have their own children, etc. Rare indeed is the divorce where the children’s best interest are served by contentious, protracted litigation between their parents. I commonly counsel my clients to attempt amicable resolution of their differences with their spouse, and forego contested fault-based divorces, in favor of settlement and no-fault divorce, particularly if there is nothing tangible to be gained by accusations of fault. Why? Because children are intuitive creatures who can sense the tension in our lives, and are particularly sensitive to such matters during their formative years, and because they love both of their parents regardless of how one wronged the other.
On the other hand, if you don’t have any kids, give me a call, I know a really good private investigator.