What Impact will Adultery Have?

When consulting with potential clients about their divorce, I am often asked the following hypothetical question:

I would like to start dating again.  What impact will it have on my case if I start seeing someone?

In other words, what impact will your spouse proving you have had an adulterous relationship have on your divorce case?

1. Divorce

The first place you should look is at the grounds for divorce.  SC Code §20-3-10(1) allows for a divorce on the grounds for adultery.  I wrote about the proof required for establishing a case of adultery in a previous post.  By establishing the proof necessary for adultery, your spouse can divorce you without having to live separate and apart from you for the no fault 12 month period.Most of the potential clients I meet with wouldn't have a problem with this aspect of adultery because it means they are potentially getting their divorce sooner and then they can openly or legally move on with their new relationship.

2. Alimony

The second major issue deals with alimony.  SC Code §20-3-130(C) sets out a list of factors that the family court judge must consider and weigh when determining whether to award alimony to one of the spouses in the case.  Subsection 10 of that section states that, "marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage[.]"  Adultery is considered marital misconduct and fault so it can be a factor weighed against you if your spouse is seeking alimony.On the other hand, if you are seeking alimony, you may barred from receiving alimony due to your adulterous relationship.  See SC Code §20-3-130(A), "No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties."

3. Property/Debt Division

The third area to consider is the area of property and debt division.  SC Code §20-3-620(B)(2) states, "marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:(a) entry of a pendente lite order in a divorce or separate maintenance action;(b) formal signing of a written property or marital settlement agreement; or(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties[.]"So depending on when the adultery occurred and the impact on the financial or economic circumstances of the parties, there could be an adjustment made to the equitable apportionment of marital assets and debts.