I Saw Mommy Kissing Santa Claus: Is an Eyewitness Necessary to Prove Adultery in South Carolina?

To obtain a divorce on adultery grounds you will need more evidence than telephone records and e-mails.  But, you don’t need an explicit sex tape, a pregnancy, or an eyewitness to prove your case for adultery.In Prevatte v. Prevatte (297 SC 345), our Court stated, “Because adultery, by its very nature, is an activity which takes place in private, it may be proved by circumstantial evidence.”Sufficient proof of adultery must establish that your spouse had motive and opportunity to have an affair.  Proof of motive shows there is a romantic relationship your spouse is involved in.  Proof of a date with another person, holding hands while walking through the park, telephone records showing numerous calls and text messages to one another.  That’s motive.Opportunity is where your spouse and his/her new “friend” are together, privately, in a place where they have a chance to consummate the affair.

What is Collusion and How Does it Affect Me?

So you've probably heard about collusion before but usually between competing companies who are working together to keep their prices high or something along those lines.  But you may not have considered the impact of collusion on your divorce case. In South Carolina, collusion is a defense that can be used in divorce proceedings that will basically prevent a fault-based divorce from being granted.Merriam-Webster defines collusion as, "a secret agreement or cooperation especially for an illegal or deceitful purpose."S.C. Code §20-3-70 states,"[i]f it shall appear to the satisfaction of the court that the parties to any divorce proceeding colluded or that the act complained of was done with the knowledge or assent of the plaintiff for the purpose of obtaining a divorce the court shall not grant such divorce."So what does that mean?  If you and your spouse are contemplating a divorce and you find out that you do not have any fault-based grounds for divorce (physical cruelty, habitual drunkenness, or adultery) and you are going to have to live separate and apart for more than one year to get a divorce, you may try to come up with a plan where one spouse goes out and has an "affair" so you can move ahead and get your divorce quicker.  If this happens, it is likely that your divorce won't be granted because you and your spouse committed this action for the "purpose of obtaining a divorce."