As I discussed in an earlier blog post, the no fault ground for divorce in South Carolina is a one year separation. In this post I’ll go over the four at fault grounds which will allow you to get divorced without the one year of separation.
The four at fault grounds for divorce in South Carolina are adultery, physical cruelty, habitual intoxication or narcotics use and desertion.
Adultery- In order to obtain a divorce based on adultery, one doesn’t need to prove the spouse actually cheated. The legal standard for adultery is that the spouse had the inclination and opportunity. This means that there doesn’t need to be actual proof of sexual intercourse. This means that if a spouse spends the night in a hotel with a paramour, they have the opportunity and inclination to cheat. There doesn’t need to be actual video or picture evidence of the act. The courts have also found that adultery doesn’t always mean sexual intercourse, it could be found with proof of mere “sexual intimacy.” Often hiring a private investigator is useful in proving adultery.
Physical cruelty- If there is actual physical injury it must be more than an isolated instance of abuse. However, if there is no actual physical injury, a divorce based on physical cruelty can be granted if one spouse’s conduct created a substantial risk of death or serious bodily harm. For example, firing a gun at a spouse but missing would be enough to rise to the level of physical cruelty needed for this at fault divorce.
Habitual intoxication- To obtain a divorce on this ground one spouse needs to prove more than occasional drinking or drug use. Rather, one must prove that this drinking or drug use has caused a breakdown in the marriage. Proof can be medical records for rehab, criminal records with convictions related to alcohol or drug use, financial records proving frequent alcohol purchase or work and employment records that show problems with the spouse’s employer due to drugs or alcohol.
Desertion- Although this is formally a ground for separation, because the time frame for a divorce based on desertion is one year, the same time as a no fault divorce, the use as a ground for divorce in South Carolina is rarely if never used anymore.
Although these four at fault grounds can be used to obtain a divorce, there is a common defense to all four- condonation. Condonation is the conditional forgiveness of the behavior which would lay the ground work for an at fault divorce. This means the innocent spouse is aware of the behavior but still decides to remain in the marriage with the at fault spouse. If the adultery happened years prior and the innocent spouse didn’t know about it then it could still be grounds for an at fault divorce years later. On the other hand, if the spouse knows of the adultery and remains with the cheating spouse and forgives him or her, then the fault ground for adultery no longer remains a ground for a divorce.
A spouse can file for divorce on any of the at fault grounds without being separated from the other spouse. However, at a temporary hearing the burden of proof will be on the innocent spouse to prove with solid evidence that fault ground in order to give the Judge the power to remove the spouse from the marital home. In any at fault divorce action, the court cannot have the hearing on the divorce until 60 days after the filing for divorce and cannot grant a divorce until 90 days after the divorce action was filed.
If one of the spouses needs help determining any issues stemming from a separation such as child custody, child support, alimony, division of assets or property, visitation but do not have a ground for a divorce, that spouse may file an action for “separate support and maintenance.”
If you, a friend or a loved one is seeking a divorce or defending a divorce and would like legal advice, contact Thrower & Schwartz. Ryan and Bill will be glad to meet and discuss the situation.
