It started with a notification you were not meant to see. Then a thread of messages, then photos, then the slow realization that this has been going on for a while. As far as you can tell, your spouse and this person have never been in the same room. So what is it, legally? And does it change anything if the marriage ends?

Start with this. South Carolina's divorce statute names adultery as a ground for divorce, but it never says what adultery is. That meaning comes from the state's courts, not the statute, and a relationship that never left the screen does not sit comfortably inside the ordinary sense of the word. That does not make it irrelevant. An online affair that is probably not adultery can still matter a great deal.

Five grounds, and no definition

Section 20-3-10 of the South Carolina Code is the complete list of reasons a court can grant a divorce: "(1) adultery; (2) desertion for a period of one year; (3) physical cruelty; (4) habitual drunkenness" — a term the statute stretches to include "habitual drunkenness caused by the use of any narcotic drug" — "or (5) on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year."

Nothing on that list mentions emotional affairs, sexting, or relationships carried on through a phone. And the chapter of the Code that governs divorce and alimony never defines "adultery" at all. What the word means in a divorce case, and what it takes to prove it, are questions South Carolina's appellate courts have answered over time.

Messages prove something. The question is what.

In its everyday sense, adultery is a sexual relationship with someone outside the marriage. Explicit texts, late-night video calls, and promises of a future together prove that a relationship exists. They do not, on their own, prove that it became physical.

Online relationships have a way of moving offline, though, and that is usually where the evidence changes. A message setting up a meeting. A hotel charge in a city your spouse called a work trip. A second phone nobody mentioned. Details like those can turn a "virtual" affair into a real one. How much proof a South Carolina court requires before it will find adultery, and of what kind, is a demanding standard set by case law, and it depends heavily on the particular evidence. Work through it with a lawyer who can see what you actually have.

Be careful about how you gather that evidence. The way you get information can matter as much as what it shows, and some ways of getting into a spouse's phone or accounts create legal problems for the person doing it. We drew that line in our post on digital evidence in South Carolina divorce cases.

You don't need adultery to get divorced

Fault is optional in South Carolina. The fifth ground — living "separate and apart without cohabitation for a period of one year" — is open to either spouse, and it requires no proof that anyone did anything wrong. Our post on how long you have to be separated to divorce in South Carolina explains how that year works.

For a lot of people who uncover an online affair, that is the simpler road. It avoids building the whole case around an argument over what the relationship really was, and it saves the conduct for the place it tends to count most: the money.

Where it can still count: alimony and property

Two parts of the alimony statute matter here, and they work very differently.

The adultery bar. Section 20-3-130(A) provides that "[n]o alimony may be awarded a spouse who commits adultery before the earliest of" two events: the formal signing of a written property or marital settlement agreement, or the entry of a permanent order of separate maintenance and support or a permanent order approving such an agreement. It is a hard rule, but it applies only to adultery. Conduct that stops short of adultery does not trigger it.

The misconduct factor. When a court decides alimony, it must weigh a list of factors, and Section 20-3-130(C) includes "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."

That language reaches further than it first appears. The misconduct does not have to be adultery, and it does not have to be the reason the divorce is granted. An online affair that ended the marriage, or one that ran through money on gifts, trips, or subscriptions, fits within it. It is still one factor among many, weighed "in such proportion as [the court] finds appropriate," not an automatic penalty.

Property division has a parallel provision. Section 20-3-620(B)(2) lets the court consider marital misconduct that affected the couple's finances or contributed to the breakup when it divides the marital estate. Both statutes stop counting conduct at a certain point: a signed settlement agreement or a permanent order, and for property division, a temporary (pendente lite) order as well.

What this means for you

If you found the messages, do not act on the first impulse. Keep what you obtained lawfully, do not confront your spouse and then watch the evidence disappear, and do not go into accounts you have no right to open. Then decide what you need most: out of the marriage, a fair financial outcome, or both. That answer decides which of these rules does the work.

If you are the one in the online relationship, know that the line between "virtual" and "adultery" is the same line the alimony bar draws, and that the timing that matters is what happens before an agreement is signed or a permanent order is entered — not the day you decided the marriage was over.

On either side, the facts carry this question. The same messages can mean very different things depending on what surrounds them.

Stevens Family Law, LLC is devoted exclusively to family law, and our attorneys handle divorce and alimony matters in Family Courts across South Carolina. Whether an affair matters in your case comes down to what can be proved and what it is worth, and that is far easier to judge with the evidence in front of a lawyer than alone with a phone at two in the morning. Call us at (864) 598-9172, or start with our consultation form.

This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Whether particular conduct amounts to adultery depends heavily on the facts and on South Carolina case law, and outcomes vary from case to case.