South Carolina has five grounds for divorce: four fault grounds and one no-fault ground. Which fault grounds you pursue will have different ramifications for your divorce settlement agreement. The four fault grounds are adultery, habitual intoxication, physical cruelty, and one year’s desertion. The no-fault ground is one year’s continuous separation. There is a three month waiting period from the date of filing until the court can grant a fault divorce. There is no waiting period for a no-fault divorce. Working with a divorce attorney who is experienced with South Carolina divorce court can greatly reduce the stress involved with a divorce.
Spouses do not need to be separated for the innocent spouse to file for an adultery, habitual intoxication, or physical cruelty divorce. The family court can order the at-fault spouse out of the house at the initial hearing if the innocent spouse presents some evidence of fault. Enlisting experienced counsel’s divorce services early for an at-fault divorce can save a lot of time and money.
All divorce grounds require corroboration, meaning independent evidence to substantiate the ground. This is to prevent spouses from fabricating a ground for divorce to end a marriage. In certain circumstances, when it is clear that there is collusion by the spouses to falsely obtain a divorce, the court can waive this requirement. Discussing your options with a divorce attorney can help you identify which grounds for divorce best fits your situation or can help you draft a fair divorce settlement agreement.
Adultery is typically not proven by proof of intercourse. All that is required to prove adultery is evidence of romantic inclination and the opportunity to commit adultery. When two people who have demonstrated mutual sexual attraction spend significant time alone together in a private setting, that is sufficient to prove adultery. Written admissions of adultery or social media postings that indicate adultery can also be proof. If you have any questions regarding the proof needed for adultery, then you should consult a divorce attorney to see if you have a case.
Adultery does not require heterosexual sexual intercourse. While the appellate courts have been deliberately vague as to what level of sexual intimacies are necessary for adultery, homosexual sex and oral sex have been sufficient to obtain adultery divorce.
The fault ground of habitual intoxication can include narcotic intoxication. The statute does not define narcotics and it would appear to have a wider meaning than the technical meaning, to include any intoxicating substance. To obtain a divorce on this ground, one must show that the intoxication was habitual and affected the marriage. Substance related job loss, criminal problems and health problems have been used by experienced divorce attorneys to demonstrate habitual intoxication. Witnesses to frequent drunken behavior or passing out can also prove this ground. Finally drug and alcohol testing can provide evidence of habitual intoxication.
To obtain a physical cruelty divorce, you or your divorce attorney must show the behavior reasonably caused the spouse to fear for his or her life or serious bodily injury. One-time minor physical violence is insufficient to prove physical cruelty. On the other hand, no actual physical contact is necessary to obtain a divorce on this ground. Credible threats of violence with a deadly weapon are sufficient to prove physical cruelty.
After South Carolina reduced the waiting period for a no-fault divorce from three years to one year, this fault ground fell into disuse. To obtain a desertion divorce one must show that the other spouse deserted the marital home without good cause and that the innocent spouse was willing to take the deserting spouse back.
There are two common defenses to fault divorce used by divorce attorneys: condonation and recrimination. Condonation is a claim that fault was forgiven based on continued cohabitation after the innocent spouse became aware of the conduct. Recrimination claims that the other spouse engaged in conduct that would constitute a fault ground.
The defense of connivance has been revived by divorce attorneys recently. Connivance is a claim that one spouse wanted the other spouse to engage in the at-fault conduct. It is being used (successfully) as a defense when one party to an open marriage alleges adultery by the other spouse. Working with a South Carolina divorce attorney can help you build a strong defense to allegations of fault.
The only no-fault ground and the most common ground for divorce services in South Carolina, nothing official needs to be filed to start the one-year period of separation. Corroboration for this ground is typically provided by friends or family of one spouse, who is aware of the date the parties separated. One cannot file for divorce on this ground until the year has elapsed.
The South Carolina family court will typically not grant a divorce until spouses resolve all issues of property division, alimony, and any other factors and child related issues if the parties still have minor children). This is to prevent spouses from obtaining a divorce while leaving marital issues contested. The time frames for divorce noted above only come into play when all other issues are resolved. If they are not resolved, then a divorce settlement agreement will be granted only when the parties reach an consensus on these issues or after a trial in which the court resolves these issues. Enlisting an experienced attorney’s divorce services can help minimize delays throughout the process.
The ground for divorce can have significant consequences. Fault is a factor in alimony, your divorce settlement agreement, property division, and can be a factor in child custody. An experienced divorce attorney can assist in the prosecution or defense of a South Carolina divorce. If you would like to retain Gregory Forman as your divorce attorney, please contact him here.
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