Forgoing divorce grounds corroboration based upon an “admission against interest”

Posted Tuesday, January 31st, 2012 by Gregory Forman
Filed under Divorce and Marriage, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

To prevent spouses from making up grounds for a divorce that they are not entitled to, South Carolina requires “corroboration” of divorce grounds to prevent “collusive” divorce requests. However, one shouldn’t assume that an independent witness or documentary evidence is necessary to corroborate a fault divorce.  Often an admission against interest will be sufficient to obtain the divorce.

In Brown v. Brown, 215 S.C. 502, 512-13, 56 S.E.2d 330, 335 (1949), the South Carolina Supreme Court set forth the rule which requires corroboration of “all the material allegations of the complaint necessary to sustain a decree of divorce….”  The Court went on to say: “There is no definite rule as to the degree of corroboration required, but each case must be decided according to its own facts and circumstances.”  Id.  The Court then explained: “Since the main reason for the rule is to prevent collusion between the parties, the rule is not generally deemed inflexible;  and may be relaxed when it is evident that collusion does not exist.”  Id.

When trying to prove fault divorce grounds (adultery, habitual intoxication, physical cruelty) the requesting party will have concerns regarding providing corroboration.   However, where the at-fault spouse has admitted that fault in a pleading or interrogatory answer such corroboration may not be needed.

In Harvley v. Harvley, 279 S.C. 572, 310 S.E.2d 161, 162 (Ct.App. 1983), the Court of Appeals affirmed an uncorroborated adultery divorce because the husband had previously admitted his adultery, holding: “[t]here is no need to corroborate the uncontradicted admission of appellant against his own interests.”

Where a spouse has admitted fault at a time when there remained unresolved issues in which fault could be relevant (child custody; property division; alimony) such an admission is a statement against interest.  This admission is sufficient to dispel concerns over collusion and obviates the need for independent corroboration.

7 thoughts on Forgoing divorce grounds corroboration based upon an “admission against interest”

  1. joe mendelsohn says:

    Greg, do you think our Judges will buy into this? Most want corroboration.

    I am thinking mostly in the 1 year grounds. Not much chance for an admission against interest by then.

    Usually have to drag the best friend to court. But then after the hearing, there is lunch and a celebatory glass of wine. Not bad.

    1. Joe:

      I think this only works for fault divorce grounds. I have no idea how one can have an admission against interest on a one year’s separation.

  2. Rob Papa says:

    I believe a routine and a [bad] habit has been formed over the years expecting the classic live witness to corroborate the ground for divorce. I would guess that I have gotten about a handful of divorces when the corroboration was a stipulated P.I. report or other documentary evidence [which might include the admission in the Answer or to discovery] and I have to guess that many others have obtained divorces w/o live witnesses. I have to believe that each of those was when the case had settled and was no longer contested.
    Along with what Joe said, I also think its emotionally helpful for a person getting divorced to have the support of family or friends being there.

  3. I use the following standard paragraph in almost all of my decrees of divorce:

    12. S.C. Code Ann. § 20-3-20 requires, “If it shall appear to the satisfaction of the court that the parties to any divorce proceeding colluded or that the act complained of was done with the knowledge or assent of the plaintiff for the purpose of obtaining a divorce the court shall not grant such divorce.” McLaughlin v. McLauglin, 244 S.C. 265, 136 S.E.2d 537 (1964), held that “A divorce will not be granted on the uncorroborated testimony of a party or the parties to the suit; however, as the main reason for the rule is to prevent collusion, it is not generally deemed inflexible and may be relaxed where it is evident that collusion does not exist.” The parties have not colluded and the act or acts complained of by the plaintiff were not done with the knowledge or assent of the plaintiff for the purpose of obtaining a divorce.

    A bitter contest is the best reason for waving a corroborating witness as those are the cases least likely to involve collusion. I have had judges excuse a corrororating on a one year ground when the case has been filed more than one year and the temporary order corroborates the separation. A private investigator’s report is admissible if there is no hearsay or other objection.

    An admission in a pleading does not necessarily corroborate anything and may be evidence of collusion or connivance. An admission of adultery is not necessarily an admission against interest if it serves the admitting party’s interest in securing a quick divorce so that he can marry his pregnant parmour.

    As I tell my clients, “Lawyers do not get paid big bucks to answer easy quetions.” These questions are not easy and must be dealt with on a case by case basis; however, if the lawyer is willing to think, there is usually a reasonable solution available.

  4. Graves Wilson says:

    While the Court is convinced beyond all doubt that couples divorcing on no-fault grounds will lie through their teeth, it has neved bought into the idea that that same couple would be able to secure false testimony to corroborate their testimony.

  5. Monet Pincus says:

    With fault ground divorces, I find this to be Judge dependant which makes it hard to prepare unfortunately. Some Judges readily cite the Harvley case and allow a fault ground divorce without a live corroborating witness. But I have had a Judge tell me (yell at me with a pointed finger) never to come into his courtroom again without a live corroborating witness–that was an adultery divorce. So, I always proceed with caution because I don’t like getting yelled at!

    1. No judge should yell at an attorney. It violates the civility oath. Do you think judges would accept us yelling at them?

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