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.
When people are suspicious of their significant other cheating, or catch them cheating, they usually wonder how they will be able to prove the infidelity in family court. Clearly, sexual intercourse is adultery but what about other forms of infidelity? South Carolina courts have stated that South Carolina hasn’t determined exactly what other acts may constitute adultery. For example, the South Carolina Supreme Court found that homosexual activity can constitute adultery, which gives the impression that oral sex is enough for a divorce based on the grounds on adultery. However, because the actual sexual act is rarely proved it most likely won’t make a difference in most cases.
Proving Adultery in South Carolina
Because sexual conduct mostly, and should, occur behind closed doors, it is nearly impossible to find direct proof of the cheater in the act. However, in South Carolina one only needs to show circumstantial evidence, that the spouse had an inclination to commit adultery and that he or she had the opportunity to do so. These requirements are referred to by family lawyers as the “inclination and opportunity.”
What is inclination?
When does spending time with a member of the opposite sex constitute more than friends? People are allowed to have friends of the opposite sex which means that just because they are behind closed doors together doesn’t mean there is infidelity. Because of this reason the courts require proof that the spouse had the “inclination” or the character or to cheat. Proving inclination can be done several ways: love letters, texting, emails, or other written material may give rise to evidence of infidelity. Joining online dating sites or dating applications on one’s phone may also be used as evidence. Other examples would be a private investigator having photographs of the cheating party holding hands with a paramour or kissing and occasionally there is evidence of over night stays which would prove the individuals are more than friends.
What is Opportunity?
To prove “opportunity,” you must prove that the cheating spouse and his lover were behind closed doors long enough for there to be time to commit a sexual act. There are no black and white rules for exactly what needs to be proven. The most concrete evidence of an opportunity to commit adultery comes through a private investigator who obtains footage or pictures of the cheaters being in the same home or a hotel room. Other forms of evidence can come from neighbors or friends; however their testimony could be biased and won’t give us the documentation and hard proof we can obtain from a private investigator. Other forms of evidence of opportunity are text messages, Facebook posts or pictures, credit card statements.
Is there A Defense to Adultery?
Yes, it is called condonation and can be a defense against a divorce. Condonation is when one party, who has been cheated on, takes actions that imply that he condoned the adulterous behavior and that the parties are reconciling. If the infidelity was discovered, you could forfeit any claim of adultery if you reconcile with the cheating spouse. Condonation can occur by having sexual relations with the spouse, letters or emails forgiving the infidelity, or moving back in together. Again, there are no clear, black and white rules on condonation either and it will but up to the Judge to determine the facts and decide whether adultery was forgiven.
Advice If You Think Your Spouse Is Cheating
The Attorneys at Thrower & Schwartz strongly recommend consulting with them. Every case has different facts and circumstances, and we need to learn specific facts of your situation to advise you how to proceed. We may recommend hiring a private investigator, having a home computer looked at by a computer expert for evidence of infidelity or tracking down witnesses. Depending on the facts of your specific case there could be numerous ways to discover what you are looking for and to gather evidence of it for court. Please at least consult with an attorney before you go searching alone.
What to Do If the Police Stop Me to Talk To Me?
Recently I had a client who was stopped coming out of his vehicle at night by a police officer. The officer just stopped to talk to the client and “fish” for more information because, as the officer put it “he was in a bad area at a suspicious time” and “I suspected he was up to no good.” The client, although lawfully stopped, should have followed a few simple rules. He was ultimately arrested, arguably illegally, and has been charged with some serious crimes. In order to better protect yourself, you should follow some simple advice.
1. Stay calm. Don’t run, don’t argue, resist, or obstruct a police officer. You get more bees with honey! Even if you are innocent or the police are violating your rights or profiling you, make sure you don’t give them a reason to arrest you. Keep your hands where they can see them and speak slowly and calmly.
2. The first question out of your mouth should be “am I free to leave.” If the officer says yes, calmly and silently walk away. If you are placed under arrest, you have a right to know why. If you are under arrest, keep your mouth shut! The Fifth Amendment gives you the right to remain silent; we suggest you invoke that right. Remember, a fish only gets caught when he opens his mouth!
3. You have the right to remain silent. You cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud that “you will not answer any questions with an attorney present.”
4. You don’t have to consent to a search of yourself or your belongings, but police may “pat you down” over your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent it could affect you later in court.
What If You Are Stopped In Your Car?
1. Stop the car in a safe place as quickly as possible. Turn off the car, turn off the inside lights, open the window half way and place your hands on the steering wheel. Upon request, show police your driver’s license, registration and proof of insurance.
2. Remember! Be polite! Asking the officer “why the ***** are you stopping me” can guarantee you more hassle than necessary. Come court time, the officer will remember your attitude and be less willing to work with you. They also may be more suspicious of you and attempt to search your car.
3. If you have a gun in your car, keep your hands on the steering wheel. As long as it is in the glove box, consol, trunk or locked in a lockable container then you should be fine. Simply notify the officer that you have a firearm in the car while your hands are on the steering wheel. The police officer will tell you what to do from that point on. Giving them a heads up on the firearm makes them feel at ease and keeps you in their good graces.
4. If you are questioned about your immigration status- you have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. These rules do not apply to international boarders, airports, and are for individuals on certain nonimmigrant visas, including tourists and business travelers. If you are not a U.S. Citizen and an immigration agent requests your papers, you must show them if you have them with you. If you are over eighteen years old, carry your papers with you at all times. If you do not have immigration papers, remain silent!
If the Police or Immigration Come to Your Home
1. You do not have to let them in unless they have certain types of warrants. Ask the police officer to slip the warrant under the door or to hold it up to a window so that you can inspect it. A search warrant allows police to enter the address listed on the warrant, but they can only search the areas and for the items specifically listed on the warrant. An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person to be inside. A warrant of removal or deportation (ICE WARRANT) does not allow officers to enter a home without consent.
2. Even if officers have a warrant, remember, you have the right to remain silent. If you choose to speak to the officers, step outside and close the door.
What If I Have A Roommate And He Consents to A Search?
According to well- established Supreme Court rulings, the police may enter and search a home if one of its occupants consents. The Court has ruled that a person with “common authority over the premises” justifies police entry if other occupants aren’t present to consent or object to the search. However, the outcome is different if another occupant is home and objects to the search. If two roommates are present and one gives consent and the other does not, then the police usually cannot search the residence. Physically being present is key, simply telling the police over the phone is not enough. You must be present at the residence to object.
Here are some examples:
1. Bill and Ryan share a house and are roommates. The police, responding to a neighbor’s noise complaint, knock on the door. Only Bill is home. When he answers the door, the officers ask to come and “check out the place.” Bill says “yes.” Because Ryan was not home to object, the officers have consent to search the house.
2. The police knock at the door and Bill answers. This time, however, Ryan is home. He hears Bill agree to let the officers in. Ryan runs to the door and tells the officers they are “not allowed in the house.” The officers are not allowed to come into the house.
3. After speaking with Bill and Ryan and learning that they cannot search their home, the officers leave. Three hours later, they come back and knock again. Ryan has left the house to go to work, so only Bill is home. Bill consents to the officers coming in and taking a look. Even though Ryan was present recently and objected to the police search, the officers now have consent to look around.