Considering Divorce in South Carolina?
You may be surprised to learn that you can’t get divorced for the same reasons in every state – each state has its own “grounds for divorce” that must be proven before a divorce is granted.
The Fault-Based & No-Fault Divorce Grounds
In SC, there are two main types of divorce – fault-based divorce and no-fault divorce – and a total of five possible grounds for divorce:
- Physical cruelty,
- Habitual drunkenness,
- Desertion, and
- One-year separation (no-fault divorce).
Below, we will look at each of the five grounds for divorce in SC as well as the difference between fault-based divorce and no-fault divorce.
Fault-Based Grounds for Divorce in SC
A “fault-based” divorce means that one spouse is the cause of the divorce.
Each state has its own laws regarding fault-based divorces, and some states don’t permit fault-based divorce at all, including Wisconsin, Oregon, Washington, Nevada, Nebraska, Montana, Missouri, Minnesota, Michigan, Kentucky, Kansas, Iowa, Indiana, Hawaii, Florida, Colorado, and California.
Why does it matter? It can affect:
- Distribution of marital property,
- Child support,
- Child custody,
- Visitation rights, and
- How long the divorce process takes.
What are the fault-based grounds for divorce in SC?
Adultery is when one spouse cheats on the other. It doesn’t matter if it was a one-time thing or an on-going affair, although the Court will find that an affair has been “forgiven” if the spouses continue their marriage after the affair has been discovered.
How do you prove adultery?
You don’t need a video or photograph of the actual act – circumstantial evidence that proves both motive and opportunity is enough to prove adultery in court. Evidence proving adultery may include:
- Testimony from your private investigator,
- Testimony from other witnesses,
- Video evidence, and
For example, if your investigator documents that your spouse has been spending a lot of time with individual A, your spouse has been hiding their activity with individual A from you, and your investigator provides the court with video or photographs showing your spouse and individual A entering a motel room late at night, that may be sufficient evidence to prove adultery.
Physical cruelty means physical abuse – physical violence or the threat of physical injury. Although you may not have to prove an actual injury, at a minimum you will need to show that your spouse’s actions created a substantial risk of death or serious bodily injury (for example, your spouse attempted to run you over with their car, but you escaped injury).
Some examples of evidence that you may use to prove physical cruelty include:
- Testimony from you, family members, neighbors, or anyone with personal knowledge of the physical violence,
- Photographs or video of the violence or the injuries that resulted,
- Prior convictions for domestic violence against you or restraining orders against your spouse, and
- Admissions made by your spouse.
If you or your children are in immediate danger from your spouse, your attorney may be able to seek an Order of Protection from the family court in an emergency hearing, and there may be other resources that we can connect you with to help you as you transition away from an abusive relationship.
Habitual drunkenness means any substance abuse – alcohol or drugs. To get a divorce on the ground of habitual drunkenness, you will need to prove that:
- Your spouse abuses alcohol or drugs,
- The alcohol or drug use is on a regular basis, and
- The substance abuse caused the breakdown of the marriage.
If someone drinks a beer after work each day, that’s not likely to be grounds for divorce. It’s habitual, but a single beer each day is not likely to have contributed to the breakdown of the marriage.
Similarly, regular marijuana use may not be grounds for divorce – particularly if the person used the marijuana in a weed-legal state – unless the marijuana use caused the breakdown of the marriage.
On the other hand, if your spouse drinks once a week or once a month, but gets unruly and violent when they drink, that may be grounds for divorce even though the alcohol use does not happen every day. Similarly, weekly use of heroin or cocaine is likely to have a more profound impact and contribute to the breakdown of a marriage, even if it is not a daily or constant addiction.
Examples of evidence that you may use to prove habitual drunkenness include:
- Testimony from you, your family, friends, or anyone who has personal knowledge of your spouse’s substance abuse problems,
- Medical records or treatment records showing your spouse’s difficulties with drugs or alcohol,
- Your spouse’s criminal convictions relating to drugs and alcohol, or
- Problems your spouse has had at work or school related to their alcohol or drug use.
Desertion, or abandonment, is where your spouse leaves the marital home and does not return, and the separation was not agreed upon by both spouses.
To get a divorce on the ground of desertion, you will need to prove that:
- your spouse left you for at least one year, and
- your spouse provided no support to you during that time.
Desertion is like SC’s no-fault divorce – both require separation of one year – except the finding of desertion can affect the distribution of property, alimony, child custody, and child visitation rights in the final divorce decree.
No-Fault Grounds for Divorce in SC
South Carolina also allows no-fault divorce or a divorce based on “irreconcilable differences.”
Although you and your spouse may still need to negotiate (or litigate) issues like distribution of marital property, alimony, child custody, and child support, a no-fault divorce may be less complicated because you do not have to prove misconduct.
One Year Separation
A no-fault divorce requires that you and your spouse have lived “separate and apart” for at least one year without reconciling. You don’t have to do anything to “start the clock” – just live separate and apart and at the end of the year the court will grant the divorce.
No-fault divorces may be faster than a fault-based divorce because they are often resolved through negotiation or mediation without a contested trial.
Even with a no-fault divorce, there must be independent corroboration of the grounds for divorce – an independent witness other than you or your spouse who can testify as to either the grounds for divorce or the fact that you have lived separate and apart for a year.
Questions About Grounds for Divorce in SC?
If you are considering separation or divorce, contact the SC divorce attorneys at Templeton, Mims & Ward at 843-285-5090 or by sending us an email through our website to set up a consultation and find out how we can help.
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