Though no one wants to think that they will ever engage in or experience the pain of adultery, the reality is that many couples will. In fact, some studies have estimated that in as many as 40 percent of marriages, one or both spouse engage in at least one affair. In many (but not all) cases, this infidelity can lead to divorce. A common question for these couples is does adultery impact child custody decisions?
What is adultery?
In South Carolina, adultery is defined as sexual activity between a married person and someone other than that person's spouse. Adultery is one of the few fault grounds for divorce in South Carolina. You can read our prior blog posts (here, here, and here) to learn more about what constitutes adultery, what's required to prove it, etc.
What impact does adultery have on a divorce case?
Adultery, when proven, can play an important role in some divorce cases, especially on the financial issues. For instance, the non-adulterous spouse will typically receive a more favorable portion of the marital estate. The Court will often require the spouse who committed adultery to reimburse costs incurred by the other spouse for a private investigator as well as a portion of his/her attorney's fees and costs. The most important area that adultery comes into play is alimony, as adulterers are prohibited from receiving any alimony in South Carolina.
What about child custody?
Child custody decisions in South Carolina are not meant to serve as rewards or punishments for faithful parents, but instead are based solely on what's in the best interest of the children. Despite the perception “on the street” that adultery causes a spouse to lose custody, the reality is that adultery typically has little impact on child custody determinations in our state.
Our Courts have routinely found that one person's infidelity to a spouse typically does not have much impact on that person's ability to serve as a reliable, caring, and supportive parent. Exceptions include those situations where the adultery directly affects the children, such as when a spouse chooses to have his/her lover around the children or chooses to spend time with his/her paramour instead of the children.