At a family law lecture yesterday, I came to the realization that most South Carolina family law attorneys believe there is a ground for divorce for habitual drug use. However a close reading of S.C. Code. Ann. § 20-3-10(4) makes the ground for divorce “Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug.” Note that it is narcotic drugs, not all drugs, that give rise to this ground for divorce. Thus not all drug abuse gives rise to a ground for divorce.
The medical definition of narcotic refers to agents that numb or deaden, causing loss of feeling or paralysis. Under this definition there is some debate whether cocaine should be classified as a narcotic or not. While cocaine is typically abused as a stimulant (which would make it the antithesis of a narcotic), it can also be used as a topical anesthetic in dentistry (which would seem to fit the definition of narcotic).
21 U.S.C. § 802 (17), the Federal criminal code section regarding controlled substances, provides a definition of narcotic that is basically limited to opiates, poppy straw, coca leaves and cocaine. The Drug Enforcement Administration provides a schedule of controlled substances that notes which ones are considered narcotic. Marijuana, Ecstacy, PCP and LSD are not listed as narcotic substances. Perhaps someone in the DEA likes jam bands?
While unclear which definition of narcotic S.C. Code. Ann. § 20-3-10(4) intends, it appears that marijuana, while it might meet the medical definition of a narcotic, does not meet the criminal definition of a narcotic. Meanwhile, cocaine meets the criminal definition but doesn’t necessarily meet the medical definition.
So my advice for drug abusing spouses in South Carolina who wish to avoid behavior that can give rise to a fault divorce: hit the bong, not the crack pipe! Or perhaps it’s hit the crack pipe, not the bong? Meanwhile, I await some intrepid South Carolina family law attorney’s quest to determine whether S.C. Code. Ann. § 20-3-10(4) refers to the criminal definition or the medical definition of narcotic.
Interesting thought, Greg. If I were making this claim, I would point the judge to the relatively narrow statutory definition of “narcotic drug” embodied in S.C. Code Ann. Section 44-53-110, which states:
“”Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(a) opium, coca leaves, and opiates;
(b) a compound, manufacture, salt, derivative or preparation of opium, coca leaves, or opiates;
(c) a substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in subitem (a) or (b). This term does not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine. ”
The statutory definition is certainly much less broad than most people probably imagine.
This example of poor legislative drafting has troubled me for years. However, I do not think anyone should believe, much less advise clients, that habitual use of non-narcotic drugs cannot be the basis for a divorce in South Carolina. We should focus on the ground for divorce, habitual drunkeness, not the cause of the drunkeness. Consider the rationale for the existence of this ground. Our case law is that a person’s habitual drunkeness must be the cause of the breakup of the marriage before it can be used as a basis for divorce. That is, if a spouse cannot or will not tolerate the drunkeness, we should not force the spouse to continue suffering. It is the drunkeness, not the cause of the drunkeness, that is the ground for divorce. Just because the statute specifically includes drunkeness caused by narcotic drugs within the meaning of the statute, this does not mean that habitual drunkeness caused by non-narcotic drugs, glue sniffing, or any other source would not also be within the meaning of the statute. If I was a family court judge asked to grant a divorce where the ground on the basis that a spouse had destroyed the marriage by habitual use of a non-narcotic drug, it would not be a difficult decision. Having said that, I have heard that some family court judges are construing the statute more conservatively than I would. But I am willing to bet that, if the legislature fails to fix the problem, the appellate courts will agree with me. Any takers?
Even though I’m a big stickler for a strict reading of statutory language (especially when a specific term like “narcotic” is used, rather than something broad like “illegal controlled substance”), I do agree with your comments. I especially agree that the culprit is poor legislative drafting, and I am quite certain you’re right in the assertion that the actual intent behind the statute is not to force spouses to remain together simply because the particular drug of choice is not defined as a narcotic.
The result of not having enough lawyers in the legislature.
Interesting thought, Greg. If I were making this claim, I would point the judge to the relatively narrow statutory definition of “narcotic drug” embodied in S.C. Code Ann. Section 44-53-110, which states:
“”Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(a) opium, coca leaves, and opiates;
(b) a compound, manufacture, salt, derivative or preparation of opium, coca leaves, or opiates;
(c) a substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in subitem (a) or (b). This term does not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine. ”
The statutory definition is certainly much less broad than most people probably imagine.
See, Ibogaine Effects
This example of poor legislative drafting has troubled me for years. However, I do not think anyone should believe, much less advise clients, that habitual use of non-narcotic drugs cannot be the basis for a divorce in South Carolina. We should focus on the ground for divorce, habitual drunkeness, not the cause of the drunkeness. Consider the rationale for the existence of this ground. Our case law is that a person’s habitual drunkeness must be the cause of the breakup of the marriage before it can be used as a basis for divorce. That is, if a spouse cannot or will not tolerate the drunkeness, we should not force the spouse to continue suffering. It is the drunkeness, not the cause of the drunkeness, that is the ground for divorce. Just because the statute specifically includes drunkeness caused by narcotic drugs within the meaning of the statute, this does not mean that habitual drunkeness caused by non-narcotic drugs, glue sniffing, or any other source would not also be within the meaning of the statute. If I was a family court judge asked to grant a divorce where the ground on the basis that a spouse had destroyed the marriage by habitual use of a non-narcotic drug, it would not be a difficult decision. Having said that, I have heard that some family court judges are construing the statute more conservatively than I would. But I am willing to bet that, if the legislature fails to fix the problem, the appellate courts will agree with me. Any takers?
Even though I’m a big stickler for a strict reading of statutory language (especially when a specific term like “narcotic” is used, rather than something broad like “illegal controlled substance”), I do agree with your comments. I especially agree that the culprit is poor legislative drafting, and I am quite certain you’re right in the assertion that the actual intent behind the statute is not to force spouses to remain together simply because the particular drug of choice is not defined as a narcotic.
And once again you think of something I have never considered!
I’m sitting hear pondering your legal argument and I can’t help thinking…
Does this lawyer meet the medical or legal definition of “douchebag”.
I think he meets both.
Drug paraphernalia is now legal in the US at the federal level.
Check out Case No. C 08-02533-PJH