Does South Carolina divorce law distinguish marijuana use from abuse?

Posted Friday, September 14th, 2018 by Gregory Forman
Filed under Divorce and Marriage, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

One of South Carolina’s four fault grounds for divorce under S.C. Code §20-3-10 is “Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug.” Hutchinson v. Liberty Life Insurance Co., 393 S.C. 19, 709 S.E.2d 130 (Ct.App. 2011) indicates that marijuana qualifies as a narcotic under South Carolina law. Accordingly, habitual “drunkenness” caused by the use of marijuana constitutes a fault ground for divorce.

South Carolina law doesn’t so much clarify the amount of drunkenness that is required to make it habitual but simply indicates that abuse of alcohol (or narcotics) is required for a finding of fault divorce. “In order to prove habitual drunkenness, there must be a showing that the abuse of alcohol or drugs caused the breakdown of the marriage and that such abuse existed at or near the time of filing for divorce.” Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735, 741 (Ct. App. 1998).

Thus the issue becomes how much use of a narcotic is required to constitute abuse. Habitual alcohol use that doesn’t constitute abuse is clearly not a ground for divorce. Drinking one regular-sized beer a day (which would be habitual use) is not habitual intoxication/abuse. Alcohol is a legal substance and habitual use alone is insufficient to sustain a finding of intoxication.

In contrast, I have no doubt that weekly (let alone daily) heroin or cocaine use is grounds for divorce. For these dangerous (and illegal) drugs, regular use equals abuse. I would not be willing to argue to a family court judge that regular use of these drugs does not give rise to a ground for divorce because it does not constitute abuse.

For marijuana, given the recent cultural and legal changes surrounding its use, the situation isn’t so clear.  I doubt it is akin to alcohol, where daily minor use is considered acceptable. However, especially if used in states where medical or even recreational use is legal, I’m also not sure if it’s akin to heroin or cocaine–with regular use being grounds for divorce. Certainly, I suspect an out-of-state defendant’s use that is weekly and legal under that state’s law would likely not give rise to a fault divorce ground. I acknowledge that there is a distinction between folks who are willing to use an intoxicating substance in circumstances in which use is legal and those who use it whether its use is legal or illegal. Still, it’s not clear that a usage level of marijuana in Colorado (where recreational marijuana is legal) that would not constitute abuse should constitute abuse if used at that same level in South Carolina.

While I would not have made this argument a decade ago, I think there’s a strong claim that weekly or twice-weekly marijuana use in states where such use is legal does not constitute a fault ground for divorce in South Carolina. There’s even an argument that weekly or twice-weekly use in South Carolina is not a ground for divorce, under a claim that it does not rise to the level of abuse.  It will take an intrepid attorney willing to raise this issue at the trial level and then litigate this matter in the appellate courts to resolve this dispute.

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