Adultery justified unequal division of marital estate

The South Carolina Court of Appeals held that a husband was entitled to a larger share of the marital estate and an award of attorneys’ fees after obtaining a divorce on the ground of his wife’s adultery, while affirming the family court’s visitation schedule and other rulings.

The parties disputed the family court’s equal division of marital property, denial of attorneys’ fees and custody-related rulings following the dissolution of their 17-year marriage. The husband argued that the property division failed to account for the wife’s adultery, his role as the children’s primary caregiver and his diminished earning capacity following retirement.

The Court of Appeals agreed that the family court erred in denying the husband’s request for attorneys’ fees without applying the governing statutory and common-law factors. Conducting its own analysis, the court concluded that an award was appropriate. Although the parties had similar incomes at the time of trial, the husband was retired, relied primarily on Social Security benefits and faced significantly lower future earning potential, while the wife remained employed. The court also emphasized that the husband prevailed on several significant issues, including obtaining a divorce based on adultery, primary custody of the children, the marital home and a contempt finding against the wife. It therefore awarded him $15,000 in attorneys’ fees.

The court also concluded that an equal division of the marital estate was inequitable. Although it agreed the husband failed to prove that approximately $58,700 used as part of the down payment on the marital home was nonmarital property, it determined that the statutory equitable-distribution factors favored awarding him 55% of the marital estate and the wife 45%. The court relied on the wife’s marital misconduct, the husband’s substantial financial contributions during the early years of the marriage, his role as primary caregiver and homemaker, and his reduced future earning capacity.

The court affirmed the family court’s visitation schedule, finding that the husband had agreed to the challenged arrangements and that the record supported the conclusion that the schedule served the children’s best interests. It also declined to address several additional arguments that were either unpreserved or abandoned on appeal.

The 7 page opinion is Kopstein v. Kopstein, Lawyers Weekly No. 012-037-26.