What Are the Grounds for Divorce in South Carolina?
South Carolina has five grounds for divorce. They are listed in S.C. Code § 20-3-10. Four are considered fault grounds: adultery; habitual drunkenness or narcotics abuse; physical cruelty and one year’s desertion. One year’s separation is the no-fault ground. Since the length of separation for a no-fault divorce was reduced to the same time period as a desertion divorce, the use of desertion as a ground for divorce has almost ceased.
To obtain a divorce on the ground of one year’s separation, one does not have to file anything to start the year running. One can file for divorce as soon as the year is over. The court may schedule the hearing on the no-fault immediately upon filing (though the divorce cannot be granted until the other spouse is served with the action and has either filed an answer or had the time to file an answer elapse).
In order to obtain a divorce on the ground of adultery, one does not need to prove the actual adultery. Instead one may prove adultery through the circumstantial evidence of opportunity (to commit adultery) and romantic inclination. Often private investigators are useful in developing proof of adultery.
In order to obtain a divorce on physical cruelty grounds, one does not need to prove an actual physical injury. Instead, one must prove that the other spouse’s conduct created a substantial risk of death or serious bodily harm. For example, firing a loaded gun at a spouse (and missing) would give rise to a physical cruelty divorce.
In order to obtain a divorce on the ground of habitual intoxication or narcotics use, one needs to show more than that one’s spouse consumes alcohol or uses drugs. Rather, one must prove this use is habitual and has caused the breakdown of the marriage. Such proof can often be medical records for substance abuse treatment, criminal records showing convictions related to substance abuse, employment records showing adverse job consequences from substance abuse or credit and debit card records showing substantial and frequent purchases of alcohol.
A common defense to any fault divorce is “condonation.” Condonation is conditional forgiveness and basically requires the innocent spouse to be aware of the at-fault conduct and to have decided to remain in the marriage anyway along with the at-fault spouse not subsequently engaging in the at-fault conduct. Thus adultery that happened years ago is not a ground for divorce unless the non-adulterous spouse was unaware of the adultery or the adulterous spouse has engaged in further adultery after the previous adultery was forgiven. Fault behavior that is condoned cannot be the basis for a divorce.
One can file for divorce on the grounds of adultery, habitual intoxication or physical cruelty without being separated from one’s spouse. However, at the temporary hearing, one will have to show the court solid evidence of the fault ground in order to have the court empowered to order the other spouse out of the marital home. In any action for a fault divorce, the court cannot have the hearing on the divorce until 60 days after the divorce action was filed and the court cannot issue the divorce decree until 90 days after the divorce action was filed.
All divorces require independent corroboration–that is, evidence that the ground for divorce exists that is independent of both parties to the marriage. Often this corroboration can be a third-party witness, although records can be used to prove a fault ground for divorce (such as a criminal record showing convictions related to domestic violence or drug/alcohol abuse).
If a spouse needs the assistance of the court in resolving issues of child custody, child support, visitation, alimony and property division but does not have grounds for divorce, that spouse may file an action for “separate maintenance.”
One must be a resident of South Carolina for a year prior to the action being filed in order to file for divorce in South Carolina. However, if both spouses reside in South Carolina, they only have to have resided here for three months prior to either party filing a divorce action here.
If you are seeking a divorce or defending a divorce action, you are welcome to click here to contact Mr. Forman’s office.