Is South Carolina heading the wrong path potentially expanding fault divorce?

Posted Tuesday, April 9th, 2019 by Gregory Forman
Filed under Divorce and Marriage, Jurisprudence, Legislation, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

In 1969 California became the first state to allow no-fault divorce. In 2010 New York became the last state to allow it. In the interim, the other 48 states began authorizing no-fault divorce, with some abolishing fault grounds for divorce altogether and others, like South Carolina, retaining fault grounds while adding a no-fault ground.

When I began practicing family law in the early 1990’s, my belief was having a fault option for divorce was good public policy. Allowing folks who simply no longer desired to be married obtain a no-fault divorce provided relief for those who simply didn’t wish to remain in an unhappy marriage. However maintaining fault grounds allowed folks to obtain a measure of vindication when their spouses committed adultery, abused drugs or alcohol, or beat them.

Yet, one problem in allowing folks to be vindicated is that it can make them vindictive. The experience of practicing family law for over 25 years and being married for almost 30 has altered my views on marital fault. While “fault” divorce may allow one spouse to feel innocent in the marital breakup, the fact is that a lot of marriages survive behavior that gives rise to a fault ground for divorce because neither spouse decides to end the marriage. In the era of no-fault divorce, if one spouse is committed to ending a marriage, that marriage will eventually end regardless of the other spouse’s guilt or innocence. While there’s certainly behavior that would lead most spouses to seek a divorce, I have increasingly come to believe that the process of determining which spouse was at “fault” for the breakup of a marriage is pointless and often leads to needless, contentious litigation.

This explains my opposition to South Carolina House Bill 3231, which would add another fault ground for divorce when “conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness, and welfare of the other and renders continued cohabitation unsafe or unendurable.” While laudatory in its intent–who wouldn’t want to protect citizens from conduct or treatment which destroys their mental well-being, happiness, and welfare, and renders continued cohabitation unsafe or unendurable–the capacity for wildly inconsistent and unjust results seems inherent in the very language of the statute.

Part of the problem is that, under South Carolina law, prima facie evidence of a fault ground for divorce gives the family court the authority to order a spouse out of his or her home at a temporary hearing. Watson v. Watson, 319 S.C. 92, 460 S.E.2d 394 (1995). These temporary hearings provide no right to cross-examine adverse witnesses or even to review the evidence against one prior to the hearing. Folks defending a “mental cruelty” [my shorthand description of this potential new fault ground] divorce temporary hearing could find themselves ordered out of their home based on nothing more than untested allegations.

Further, whereas existing fault grounds have objective criteria and evidence, this new fault ground is largely subjective. There’s not much uncertainty about what acts constitute adultery. While folks can argue over how much physical violence constitutes physical cruelty or how much drinking and drugging is necessary to make it “habitual,” there is at least agreement on the type of behavior that constitutes these fault grounds. Further, there is usually objective evidence that corroborates these fault grounds.

In contrast, “mental cruelty” is largely subjective and the evidence of such cruelty is largely subjective or incorporeal. An offensive text or social media communication could be serious or it could be jesting. A tone of voice that one spouse may intend as excited, the other might perceive as threatening. And the acts that could meet this statute’s criteria are so broad that each individual family court judge will be creating his or her own definition of what constitutes sufficient mental cruelty to obtain a fault divorce

Does constant eye-rolling destroy some spouse’s “mental well-being, happiness, and welfare” to the extent that “continued cohabitation [is] ….unendurable”? Then eye-rolling now becomes grounds for divorce. Do unkind comments about the other’s weight, attractiveness, career, industry, or sexual prowess destroy one’s happiness? I’ve never heard anyone claim unkind comments on these topics leave them ecstatic. Now such comments would be potentially sufficient to get the commenter evicted.

For every partner who finds his or her spouse’s language or behavior mentally cruel there’s a spouse who finds their partner’s treatment equally unjust. Trying to determine whose behavior is worst, who started the mentally cruel behavior, and whether one party’s behavior justified the other party’s response (or whether that other party overreacted) is a fool’s errand I hope our legislature is smart enough not to impose on our family court judiciary.

I wouldn’t mind South Carolina abolishing fault divorce. Adding a vague, impossible-to-disprove fault ground is a step backward.

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