Local family law attorney Tosha Jean Kotz has an excellent article, “Dogs & Divorce,” in the most recent SC Lawyer magazine. The article briefly discusses the history of how the law has treated animals before thoroughly examining recent state statutes and case law (none of which is from South Carolina) on how to treat pets in property division.

Historically, the law has treated animals no different than other item of personal property–something akin to a chair or television. The court would value the animal and divide the value. And value, in this context, was stripped of emotion: it was the price a willing buyer and willing seller would agree upon with no compulsion to buy or sell. In that system, the value of a thirteen year-old daschund with hip dysplasia was likely pretty minimal–perhaps negative. But to the human companion, that pet is significantly more valuable than an item of personal property that would cost multitudes more on the open market. The key distinction: that pet isn’t fungible and has emotional value to the human. Further, in equitably dividing marital property, the family court had never previously been asked to consider the emotional well being of the property it was dividing. “Dogs & Divorce” highlights a trend in the law in which family courts are now being asked to consider this.

The law has slowly drifted away from treating animals as inanimate, fungible items. As English Philosopher Jeremy Bentham noted in his 1789 work, An Introduction to the Principles of Morals and Legislation, “The question is not, Can they reason?, nor Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?” In Bentham’s time many of the animals the typical human owned would be livestock: the 18th century version of your car or your grocery store butcher/milk department. While people might develop an emotional attachment to their horse, cow, pig, or chicken, this emotional attachment wasn’t the primary reason folks owned animals. Now, absent divorce cases involving farmers and ranchers, most property division disputes involving animals involve animals as pets. And with pets the primary value of the animal is the emotional attachment and, in dividing it, a court might want to consider the emotional well being of that animal.

The law does a poor job of addressing emotional value. It doesn’t do it well in tort law. It rarely does it at all in contract law. In family law the amorphous, “best interest of the child(ren)” standard is, in part, an attempt to address it in custody cases. Until recently, family courts have not been asked to consider the emotional well being of animals.

When I attended law school in 1988-91, few offered courses addressing animal rights. Peter Singer’s 1975 book, “Animal Liberation: A New Ethics for Our Treatment of Animals,” instigated the development of these courses and now almost every law school has one. But there’s no obvious right answer as to how much consideration the law should give to the emotional well being of an animal. If someone wants to take a jackhammer to their television, we might consider him misguided but we wouldn’t want to outlaw it. Few would advocate for a similar right to take a jackhammer to one’s pet. Yet I doubt anyone but a few extreme animal advocates would place the moral considerations we owe a pet on the same level we place a child’s. If the law moves towards treating pet “custody” with the same diligence it treats child custody, it will be a boon for family law attorneys but a burden for the family court system and the families who enter it.

On the emotional consideration issue, “fungible personal property < animals/pets < humans” is a formula most humans would agree upon [and yes, I see the problem is allowing humans to impose this formula]. Ms. Kotz’s article shows the law just beginning to grapple with the question of where and how to place animals and pets on this spectrum. I expect the law will still be grappling with it long after I retire.

Interesting article in yesterday’s New York Times about parents using the other parent’s occupation [one involving moderate-to-high risk of exposure to COVID-19] to justify emergency relief changing custody or denying visitation. Evidently some family courts are accepting this argument and granting relief on this basis, under their belief that they are protecting children from COVID-19 and their actions are “in the best interests of the children.”

Normally, I would be completely sympathetic to family court judges limiting visitation or changing custody based upon a parent’s high-risk behavior. Here, I find these actions ill-advised–perhaps even despicable. These parents place themselves at risk to help society function (for medical professionals, they risk their own life and health to protect the public health). Folks who are willing to do this should probably get the benefit of the doubt in weighing their desire to maintain a relationship with their children versus the risk of exposing their children to COVID-19. I certainly wouldn’t want parents deciding, as some of these parents did, to not assist in a public health crisis because they risk losing visitation or custody.

I’m not shocked that some attorneys are assisting those parents who want to use COVID-19 as a basis to deny visitation or change custody–I just wouldn’t be that attorney. I wish I could say I was shocked that family court judges are buying this argument, but the problem (one I have often noted) of vesting tremendous equitable powers in a single judge invites this sort of God-like decision making.

An issue more philosophical than legal is whether there should be a ceiling on alimony and (especially) child support awards. On one hand, alimony (and to some extent child support) is intended to allow the spouse or child to enjoy a similar lifestyle to a high-income spouse or parent. On the other hand, why should anyone be legally required to involuntarily support others in an ultra-lavish lifestyle? This concern is even more pronounced when it comes to children, who can end up spoiled if lavished too extravagantly.

South Carolina law hints, but doesn’t clearly state, that there is a ceiling on such support. On alimony, the case of McElveen v. McElveen, 332 S.C. 583, 506 S.E.2d 1 (Ct.App.1998), suggests there is a ceiling on alimony. In that case, the Court of Appeals reduced an alimony award from $11,000 to $7,500 per month with this rationale:

We recognize that Husband’s income is substantial and that his adultery brought about the dissolution of this marriage. Nevertheless, these facts do not alter our view that $11,000 per month constitutes an excessive award. It is inconceivable to this court that such an award would not deter Wife from ever seeking to improve her financial circumstances. After careful review of Wife’s financial declaration and monthly expenses, we hereby reduce Husband’s monthly alimony obligation from $11,000 per month to $7,500 per month, effective immediately.

This alimony reduction took place despite Wife having fibromyalgia and despite Husband having an annual income of $500,000. In reducing Wife’s alimony award, the Court of Appeals found the following expenses to be excessive: $1,105 per month for food and household supplies; $300 per month for laundry and cleaning; $900 per month for clothes; $960 per month for entertainment; $250 for child care; and $164 per month for pet expenses. For a household with a $500,000 annual income, I don’t see these expenses as outlandish but the Court of Appeals did.

Personally, while I don’t think alimony should be used to equalize income (unless the parties were married 40+ years and are both fully retired) I also don’t think there should be a ceiling on alimony. One would assume folks with ten figure net worths or nine figure annual incomes live much more lavishly than folks with “mere” eight figure net worths or seven figure annual incomes. To the extent that one believes anyone “deserves” alimony, the spouse of the former is probably entitled to greater alimony (although likely a smaller percentage of the supporting spouse’s income) than the spouse of the latter.

However McElveen suggests the Court of Appeals disagrees with me. I read McElveen as preventing alimony awards above $7,500 in 1998 dollars. Given the growth in per capita income since 1998, I assume it would approve alimony awards greater than $7,500 per month (an approximate equivalent is $15,000 per month in 2019 dollars). However, I occasionally see separation agreements in which a supporting spouse–represented by counsel–agreed to even greater alimony. Their counsel may not have read McElveen.

As for child support, per South Carolina Regulation 114-4710(A)(3), “[w]here the combined gross income [of the parties] is higher [than $360,000 per year], courts should determine child support awards on a case-by-case basis.” This regulation is silent on what factors the court should look at to determine high-income child support. Pre-guidelines cases indicated that, “In determining the proper amount of such awards a court should consider not only the needs of the children but also the ability of the father to pay and all other surrounding circumstances.” Lowe v. Lowe, 256 S.C. 243, 182 S.E.2d 75, 77 (1971). The child(ren)’s needs and a parent’s ability to pay seem a good starting point for determining high-income child support.

The issue then becomes, what does the child of an extremely high-income parent need and is there a ceiling on need? Some attorneys try to calculate high-income child support via extrapolation of the guidelines. I think that’s inappropriate. First, some states do authorize extrapolation and I assume South Carolina would have authorized it had it intended to. Second, the child support guidelines are curvilinear: that is, they slope more gently the higher the income. To use a linear extrapolation–which is the only extrapolation I’ve seen attorneys suggest–is to assume that there is no ceiling on child support and thus a child could have unlimited need. I don’t accept that.

While South Carolina has not adopted the oft cited “three pony rule,” that rule suggests there are limits to any child’s needs. The rule originated with In re Marriage of Patterson, 22 Kan. App.2d 522, 528, 920 P. 2d 450 (1996), which held “no child, no matter how wealthy the parents, needs to be provided more than three ponies.” I not only agree with that rule but find it too generous on child support–having yet to encounter the child who could not get by with a mere two ponies. But if the law believes that no child needs more than three ponies, there is a clear ceiling on child support.

Even if the supporting parent is a multi-billionaire, I cannot envision a South Carolina appellate court affirming a child support award of $1,000,000 (or even $100,000) a year. Ultimately, I think there should be a ceiling on child support but not on alimony. However, I believe South Carolina law suggests there is a ceiling on both.

A decade ago, in a blog titled, “Why won’t South Carolina end common-law marriage?,” I expressed my strong dislike of the doctrine by noting, “cases resolving the issue of whether a couple was married at common-law do not become a ‘quest for the truth’ but instead devolve into determining who is the less convincing liar,” before concluding:

Given that marriage is one of the most significant and solemn things most of us will contract in our life, shouldn’t the law require that we not enter this contract inadvertently or accidently? Common-law marriage was made for hillbillies, and the folks who claim to contract it in the twenty-first century tend to live the chaotic lives of hillbillies, even if they live in suburban homes and have decent incomes… We shouldn’t encourage such chaos or allow so much perjury to be suborned. … If people want to be married, they should get that damn piece of paper: South Carolina needs to abolish the archaic practice of common-law marriage.

Evidently, the members of the South Carolina Supreme Court share my distaste of common-law marriage. From watching the oral argument in Stone v. Thompson, it was clear that the Supreme Court would create standards that would engender greater uniformity in establishing a common-law marriage. It was less clear whether the Supreme Court would abolish it outright. The July 24, 2019 opinion in Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019), does both: holding that “no individual may enter into a common-law marriage in South Carolina after the date of this opinion,” while holding that to judicially establish common-law marriages contracted prior to July 25, 2019, the party seeking to establish such a marriage will need to do so by clear and convincing evidence.

In abolishing common-law marriages prospectively, the Supreme Court looked to the reasoning of a Pennsylvania case, PNC Bank Corp. v. W.C.A.B. (Stamos), 831 A.2d 1269 (Pa. Commw. Ct. 2003):

The circumstances creating a need for the doctrine are not present in today’s society. A woman without dependent children is no longer thought to pose a danger of burdening the state with her support and maintenance simply because she is single, and the right of a single parent to obtain child support is no longer dependent upon his or her marital status. Similarly, the marital status of parents no longer determines the inheritance rights of their children. Access to both civil and religious authorities for a ceremonial marriage is readily available in even the most rural areas of the Commonwealth. The cost is minimal, and the process simple and relatively expedient.

Expanding on that reasoning, the Supreme Court noted:

The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders. By and large, society no longer conditions acceptance upon marital status or legitimacy of children. The current case is emblematic of this shift, as the parties’ community of friends was wholly unconcerned with their marital status, and indeed several of their witnesses were in similar relationships. Meanwhile, courts struggle mightily to determine if and when parties expressed the requisite intent to be married, which is entirely understandable given its subjective and circumstantial nature. The solemn institution of marriage is thereby reduced to a guessing game with significant ramifications for the individuals involved, as well as any third party dealing with them.

Critically, non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups. The right to marry is a fundamental constitutional right, which leads us to believe the right to remain unmarried is equally weighty, particularly when combined with our admonitions that a person cannot enter into such a union accidentally or unwittingly. Further, we must agree with the many observers who have noted that common-law marriage requirements are a mystery to most. The present case is again illustrative. None of the multiple witnesses who were asked understood what was required to constitute a common-law marriage, despite the fact that, as mentioned, several were involved in lengthy cohabitating relationships themselves. Moreover, two of such partners testified in complete opposition to one another, with one reporting they were common-law married, and the other stating emphatically they were not. This further persuades us to reject a mechanism which imposes marital bonds upon an ever-growing number of people who do not even understand its triggers.

Our public policy is to promote predictable, just outcomes for all parties involved in these disputes, as well as to emphasize the sanctity of marital union. We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements. Our quest to see inside the minds of litigants asserting different motivations and levels of knowledge at varying times must yield to the most reliable measurement of marital intent: a valid marriage certificate.

Citations omitted.

Having abolished common-law marriage, prospectively, the Supreme Court next addressed what to do with folks who already believed they were married at common-law. The court “decline[d] to exercise our prerogative to apply our ruling today retroactively. We see no benefit to undoing numerous marriages which heretofore were considered valid in our State, and we will not foreclose relief to individuals who relied on the doctrine.”

However, the Supreme Court imposed a higher burden of proof for those wishing to establish common-law marriage:

Consistent with our observations regarding the institution’s validity in modern times, we believe we must update the standards courts are to apply in future common-law marriage litigation. A common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance. The key element in discerning whether parties are common-law married is mutual assent: each party must intend to be married to the other and understand the other’s intent. Some factors to which courts have looked to discern the parties’ intent include tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts.

Appellate courts have previously recognized two lines of cases regarding common-law marriage. The first holds that a party proves a common-law marriage by a preponderance of the evidence. The second relies on a strong presumption in favor of marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a long period of time. This presumption—like common-law marriage itself—is based on a conception of morality and favors marriage over concubinage and legitimacy over bastardy. It can only be overcome by strong, cogent, satisfactory or conclusive evidence showing the parties are not married. This Court has held that once a common-law marriage becomes complete, no act or disavowal can invalidate it.

Thompson argues the rebuttable presumption of common-law marriage is based on outdated assumptions about cohabitation. Given our foregoing assessment of common-law marriage, it will come as no surprise that we agree. The concerns regarding immorality, illegitimacy, and bastardy are no longer stigmatized by society, and as a result, they can no longer serve as the basis for assuming individuals are married.

Additionally, consistent with our preceding discussion regarding the sanctity of a marital relationship and our reticence to impose one on those who did not fully intend it, we believe a heightened burden of proof is warranted. Therefore, we hold the clear and convincing evidence standard utilized in probate matters should also apply to living litigants. This is an intermediate standard—more than a preponderance, but less than beyond a reasonable doubt—and requires a party to show a degree of proof sufficient to produce a firm belief in the allegations sought to be established.

Citations omitted.

Given some folks’ reliance on the common-law marriage doctrine, it makes sense for the ban on recognizing common-law marriage to only apply prospectively. However, given the inconsistencies of evidence in practically every contested common-law marriage case, and given a strong public policy that folks should understand their own marriage status, this increased burden of proof was long overdue.

Finally, Stone reversed the family court and found no common-law marriage between these particular litigants. The evidence reflected that the parties began dating in the early 1980’s, had their first child together in 1987, and began cohabiting in 1989. Between 1989 and 2004 there was no evidence of Thompson holding herself out as married. In the 2005-08 time period, Thompson was inconsistent on her marital status. Thompson blithely noted that she sometimes held herself out as married during this time period “because banks were more closely scrutinizing mortgage loans.” This led the Supreme Court to cite in a footnote language from the Pennsylvania PNC Bank case:

[C]ouples may swear in applying for benefits that they are man and wife, but file tax returns averring under penalty of perjury that they are single. One attorney in oral argument, when asked how he could explain affidavits to the IRS inconsistent with the testimony of his client in the litigation then before the court, replied matter-of-factly that he assumed it lowered their tax liability. What is truly astonishing is not that parties take inconsistent positions to gain advantage, but that they seem to see nothing particularly inappropriate in their chameleon-like behavior. We must conclude that this court can no longer place its imprimatur on a rule which seems to be a breeding ground for such conduct and its attendant disrespect for the law itself.

In finding the parties were not married, the Supreme Court concluded, “While we in no way condone false statements in pursuit of a financial benefit, we do not believe these documents evidence the necessary intent to prove the parties were common-law married.”

Common-law marriage was clearly a doctrine that has outlived its usefulness. While the courts viewed it as a different method of proving marriage, the culture considered it a different type of marriage–and this disconnect between law and culture was creating constant uncertainly and injustice. For family law attorneys who examined the practice of common-law marriage as part of litigation, it was obvious that common-law marriage was rarely an actual marriage as married folks actually understand it.

Consider your own marriage–if you are married. There are easily ten moments each day in which your marriage is publically noted. Every time you wear a wedding ring and every time you refer to your partner as your spouse, or your husband/wife, you are making a public record of your marriage. Imagine what would happen if 1% of the time you indicated you were not actually married: you didn’t wear a wedding ring out in public; you referred to or introduced your spouse as your friend/girlfriend/boyfriend to folks who know both of you; you filed tax returns as single or head of household and told your spouse to do likewise. Imagine your spouse’s reaction when he or she discovered you were doing this. Not pretty. That’s because you are married. Yet folks who were married at common-law did this routinely.

Given the rise of cohabitation in the past 50 years, this oscillation in public declaration of marital status was becoming routine–and causing grave injustice in the family court as folks couldn’t be certain of their own marital status. In Stone, even the couple’s own friends were unclear on their marital status. Often one half of a couple considered them married and the other half did not. Some of these couples even disagreed on their own marital status. This uncertainty was the problem common-law marriage was creating. I’m thrilled our Supreme Court finally abolished it.

There are numerous recurring issues in South Carolina family law that ultimately will need to be resolved by our appellate courts. One of the more interesting ones–because it is both relatively common and extremely consequential–is the interaction of the De Facto Custodian statute and the Moore factors.

The Moore factors were created by the 1989 Supreme Court case of Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989), which set up a four-criteria test for deciding when to return children to their parents when a non-parent had custody. Those factors were:

1) The parent must prove that he is a fit parent, able to properly care for the child and provide a good home.

2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party.

3) The circumstances under which temporary relinquishment occurred.

4) The degree of attachment between the child and the temporary custodian.

Moore did not establish the supremacy of any one factor. In practice, the first factor–parental fitness–was often controlling. When the parent was unfit this wasn’t an issue: the family courts were obviously not going to return custody to an unfit parent. However when a parent was fit, the other three factors–especially the fourth one–would seem to caution the courts from returning custody when the child had a strong and enduring bond to the third-party. In practice, family court judges were overruled when they failed to return children to fit parents.

In 2008, South Carolina enacted a “De Facto Custodian” statute, § 63-15-60. That statute defined as a “De Facto Custodian,”:

[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

(1) has resided with the person for a period of six months or more if the child is under three years of age; or

(2) has resided with the person for a period of one year or more if the child is three years of age or older.

Someone who can prove he or she meets this definition by clear and convincing evidence “has standing to seek visitation or custody of that child.”

Many of the third-parties who have physical possession of a child meet the criteria of De Facto Custodian. The De Facto Custodian statute would appear to give such parties greater claim (than Moore does) to keep custody. Frequently, in custody cases between parents and non-parents, the non-parents will be much more stable and closely bonded to the child–but the parent will be fit. Under the Moore factors, custody would likely–if gradually–be returned to the parent. Since the De Facto Custodian statute gives such non-parents the right to seek custody, it seems less likely the court should return children to parents in such situations.

No appellate opinion resolves this issue. An unpublished 2017 Court of Appeals opinion in Lester v. Sanchez originally held that a De Facto Custodians “are not on equal footing with biological parents in a custody dispute.” However that opinion was then refiled to remove such language by removing the finding that Sanchez was a De Facto Custodian.

I support the line of United States Supreme Court cases that give parents a Constitutionally -protected liberty interest in raising their children. However, I also think it cruel to remove children, especially young children, from the only caregivers they have known to return them to a parent who was unable or unwilling to raise them during their infancy. The bond a child develops with a caregiver the first few years should only be broken under the most compelling circumstances–and I don’t think a biological parent finally getting fit is so compelling. To the extent the De Facto Custodian statute might hinder the removal of children from the persons they are most bonded to and return them to fit parents they may not know very well, I think that is a good thing.

Right now I have two cases where the balance between the Moore factors and the De Facto Custodian statement may be outcome determinative. I’ve had a half dozen similar cases the past five years. How the Moore factors and the De Facto Custodian statute should interact will ultimately be decided because some intrepid attorney appeals the issue after getting a disappointing result. The test case is surely out there awaiting some ambitious attorney’s attention.

On June 6, 2019, I argued an appeal in the Court of Appeals that involved a novel issue that I expect to become increasingly common. The family court ordered my client, the Appellant/Wife (I was not the trial attorney), to pay significant permanent periodic alimony to her now Ex-Husband. Unhappy with the both amount and the permanency of the alimony award, she appealed (she also appealed other issues irrelevant to this blog).

In addition to making arguments about the family court miscalculating her income or overstating Husband’s need, we raised a novel issue: arguing her Husband, despite having an income approximately one-quarter of Wife’s, was not a “supported spouse.” To justify this result we noted that the family court explicitly found Wife was the primary caretaker of the parties’ three children and that the family court made no finding that Husband handled more of the household chores than Wife did. If one spouse is simply less ambitious or hard working does that make that spouse “supported”?

The traditional rationale for alimony was that the husband worked while the wife stayed home. Not only would the wife do almost all of the child rearing and household chores, she would also primarily handle the “emotional labor” of the marriage (although this term would not have been used at the time). Even if society had been as open to women in the labor force as it was to men, the fact that women deferred career development to run the household justified alimony when the marriage ended.

As the labor force became more accepting of women, and as women began entering higher paying and more prestigious positions, the unequal division of household labor lessened but still persisted–begetting the concept of the “second shift.” While more women worked, few earned as much as their husbands. Given wives significant second shift work during the marriage, the historic justifications for alimony still existed, even if the need for alimony was often reduced.

But in the past few years, I’ve encountered a few cases in which wives not only substantially outearn their husbands, but also handle the majority of the child care, household chores, and emotional labor. Until a few years ago, I almost never saw this situation: in the rare circumstances in which wives were outearning their husbands, their husbands were typically deferring career goals (and handling the majority of child care) to support their wives’ careers. Given current demographic trends, I expect this cohort to increase in size in the coming years.

Such wives are nothing like the hard charging husbands I encountered a generation ago. Such husbands almost uniformly directed their ambitions towards career and let their wives run the household. This small but increasing cohort of wives are simply more involved with their children and more ambitious in their career. My client on this appeal was awake before the roosters so she could go running before she woke up the children to get them ready for and to school and she literally burned the midnight oil so she could finish her work after the children were asleep. In such a situation, is a husband a “supported spouse” or is he simply less ambitious? And if he’s simply less ambitious, is there any justification for significant alimony or permanent alimony?

Roy Stuckey’s “Marital Litigation in South Carolina” lists five justifications for alimony. One of them is marital misconduct but the other four all involve compensation for the caregiving and reduction in career ambition that traditional homemaker services entails:

Compensation for the loss in standard of living

Compensation for loss of earnings arising from care of children

Compensation for loss of earnings arising from care of third parties

Compensation for loss due to investment in other spouse’s earning capacity

Absent these situations what is the justification for significant permanent alimony? Is alimony permanent welfare for unambitious spouses? I don’t think that was our legislature’s intention.

As noted above, it’s a novel issue on how to address alimony where one spouse (and in my experience to date that spouse is always the wife) was both more ambitious in career goals and more active in running the household. It’s an issue I expect South Carolina’s Supreme Court to address within a few years.

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.

South Carolina case law from as recently as May 2018 holds that the morality of a parent is a proper factor for consideration in custody determinations, limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child. The problem with this case law is that it leaves determinations of morality up to the individual views of 50+ family court judges. Not only might these judges have a different views of morality, but these views likely change over time.

When I began practicing family law in South Carolina a quarter century ago, there were two areas where my view of morality differed greatly from most family court judges. I saw nothing immoral about homosexuality per se. Outside of its illegality (which I did not support), I saw nothing immoral about marijuana use. This doesn’t mean that certain homosexual behaviors couldn’t be considered immoral (there are many sexual acts that can be considered immoral–rape, incest, infidelity, and coercive sex being obvious examples); it simply means that the fact that the activity was homosexual rather than heterosexual didn’t render it immoral. This also doesn’t mean that marijuana use can’t be immoral: excessive use that hinders one’s ability to meet one’s responsibilities/commitments is immoral and there’s a reasonable argument that illegal behavior is immoral if a law is merely wrong and not immoral (and I wouldn’t argue the criminalization of marijuana is immoral).

In the proceeding 25 years, if the views of family court judges on the morality of homosexuality haven’t changed, their rulings regarding homosexual parents have. Early in my career homosexuality was often a factor in custody determinations, especially if the child was exposed to the homosexual relationship. That stopped long ago. I cannot recall the last time some attorney has told me about custody being changed due to a parent’s homosexuality but it certainly hasn’t happened 2014, when gay marriage became authorized in South Carolina.

I suspect a similar process will take place in the next 25 years over the morality of marijuana use. As medical marijuana becomes legal in the majority of the United States, recreational marijuana use becomes legal in an increasing number of states and countries, and as older generations who disapprove of its use are replaced by younger generations who accept its use, it will become harder for marijuana use to be seen as a legitimate basis to change custody, let alone to require a parent’s visitation be supervised or to remove a child from a parent and place that child in foster care.

I understand the argument that it is marijuana’s illegality that renders it a impediment to custody. One used to hear similar argument regarding homosexuality–it wasn’t until 2003 that the United States Supreme Court held that laws criminalizing consensual homosexual conduct were unconstitutional. However there’s a lot of illegal activity that family court judges seem to be less concerned about–driving over the speed limit or not declaring cash to the IRS being common examples. The parade of perjury that happens in their courtrooms is an obvious example of illegal behavior that should greatly concern family court judges. Yet I see it happen regularly without judges being that bothered. I’ve certainly never seen perjury be the reason a family court judge changed custody or supervised a parent’s visitation.

Did the morality of homosexuality change in the past 25 years or did South Carolina conservatives finally recognize that the behavior wasn’t per se immoral? I believe the latter. I wouldn’t be surprised if we see a similar change in the views on the morality of marijuana use in the next 25 years.

This raises an important jurisprudential point. If views of morality can change this substantially within a generation, should we be using views of morality–especially views that are not held by an overwhelming majority of the populace–to determine child custody?

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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