Adultery is a common reason couples divorce, and can be claimed in a fault-based divorce. However, to make an adultery allegation, you must have hard proof. You may hear about an affair through gossip or your circle of friends, but this is not enough for the court. Our clients sometimes ask if things like text messages or online messaging count as proof – and often, the answer is yes.

Text messages are the ultimate insight into your spouse's life, and if you believe they are hiding something important from you, the proof is likely right there. However, before you attempt to hack into your spouse's phone or computer, it is crucial to speak to an attorney first so you do not compromise any evidence.

If you are seeking to establish a fault-based divorce in South Carolina, you can claim adultery. This is important, because in our state, adultery is an automatic bar to alimony, and may also affect claims to marital assets. Generally, you and your attorney will need to show that your spouse had both the reason or motive to commit adultery, and that they had the opportunity to do so.

The burden of proof for adultery

If you are starting the divorce action, or plan to use adultery as your grounds for divorce, the burden of proof falls on you. This means that you must be able to show the adultery through evidence – that your spouse more likely than not committed infidelity. Rumors and hearsay does not count as evidence. However, a good attorney can work with you to subpoena things like text and computer messages, which generally have the proof you will need.

What happens when I do prove adultery?

Once the court has proof of infidelity, it can affect the outcome of your divorce in a variety of ways. These can include:

• Eligibility for alimony. If a spouse commits adultery in South Carolina, they are no longer eligible for alimony. This also counts for the period of separation.
• Less marital property. If your spouse spent marital funds on the affair, that amount can be deducted from their share of the marital estate.
• No one-year waiting period. Because adultery is grounds for divorce, you do not have to go through the one-year no-fault separation period before divorce is finalized.

When are text messages not allowed in court?

Certain federal and state privacy laws can prevent texts and emails from being entered into evidence, especially if they are procured through the wrong means. Unlawfully intercepting private electronic communication can result in all of your evidence being thrown out of court.

If you believe your spouse is committing adultery and the proof is in texts and other private messaging, any attempts to retrieve or copy those messages without authorization will likely result in them being impermissible in court. Your attorney can go through the correct and proper steps to get access to any electronic messages so they may be admitted as evidence.

Attorney Tom Holland provides smart advice for clients considering or going through divorce. We help protect your rights and look out for your best interests. Contact Holland Law today. We serve clients in York, Lancaster, and Chester Counties. Call today to schedule a consultation in our Fort Mill office on Gold Hill Road, or in our Rock Hill office on Oakland Avenue at 803-219-2630, or reach out through our contact page.

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