If you are considering separation or divorce in SC, the first question you may have is how do I get a divorce? You can’t just say “I want a divorce” – you must have a valid reason for the divorce. What are the grounds for divorce in SC?
SC Code Section 20-3-10 lists the grounds for divorce in SC – there are five. You can only get a SC divorce if:
- You have lived separate and apart for a full year;
- Your spouse has deserted you for at least one year;
- Your spouse has committed adultery;
- Your spouse is habitually drunk or addicted to drugs; or
- Your spouse has subjected you to physical cruelty.
Below we will look at each of the grounds for divorce in SC, when they apply, and what they mean.
Can You Get a No-Fault Divorce in SC?
A no-fault divorce, or a divorce based on one year’s separation, is appropriate when you and your spouse have been separated for at least a year, there are no other grounds for divorce, and alimony, child support, or child custody are not an issue.
You can ask for a no-fault divorce when there are other grounds present – why would a person do that? Every case is different, but, if division of assets, alimony, or safety of your children are not an issue, a no-fault divorce can be the “friendlier” route for a couple.
Why plead “fault” grounds for divorce? In some cases, if “fault” grounds for divorce are present, it can speed things along a bit – there is no need to wait the full year before filing your divorce complaint.
More importantly, fault grounds for divorce like adultery, physical cruelty, drunkenness, or desertion can affect the court’s determinations as to:
- Division of marital assets;
- Whether and how much alimony is awarded;
- Child custody; and
- Child visitation.
If your spouse is physically abusive, habitually drunk, or promiscuous, it can have a dramatic effect on the well-being of the children, and the Court may take this into consideration when determining child custody, when the children can visit, and whether there must be supervision during visits…
What Are the Fault Grounds for Divorce in SC?
A person does not have to wait a full year before filing for divorce if the spouse has committed adultery, physical abuse, or is a habitual drunk.
If you file for divorce on a fault ground, the soonest that the Court will schedule a temporary hearing is 60 days after the divorce action is filed, and the absolute soonest that the Court can issue a final divorce decree is 90 days after the divorce is filed.
At the temporary hearing, you will have to prove the fault grounds that you allege in your divorce complaint. Your testimony alone is not enough to prove fault – you will need independent corroboration like:
- Independent witnesses who have observed the infidelity, abuse, or drunkenness, or
- Documents or records showing your spouse’s criminal convictions, drug abuse, or adultery.
There are four “fault” grounds for divorce in SC: Desertion, Adultery, Physical Cruelty, and Habitual Drunkenness.
Although desertion is still “on the books,” it is rarely used as a ground for divorce anymore. This is because desertion requires continuous separation for one year, which is already available as a no-fault divorce.
On the other hand, willful desertion may be an appropriate ground for divorce when your spouse has deserted you and you fear that there may be future litigation over child custody, visitation, or alimony.
Adultery is by far the most common ground for divorce in SC.
How do you prove adultery? There must be independent corroboration of the infidelity – it can be proven through eyewitness testimony, video or audiotaped evidence, or documentary evidence like credit card receipts, emails, or other communications between your spouse and their love interest.
Often, it is necessary to use a private investigator to confirm that your spouse is cheating and to gather evidence that we can use in the courtroom.
You don’t have to bring direct evidence of the adultery to court – more often, it is proven through circumstantial evidence of inclination and opportunity. If you can prove that your spouse was inclined to cheat (they are interested in another person) and that they had the opportunity to cheat (your investigator obtained video of them entering the other person’s home or a motel room), that will usually be enough evidence to satisfy the court.
Adultery, unless it occurs after a separation agreement has been entered, can also be a complete bar to alimony…
Physical cruelty can be grounds for divorce if your spouse’s actions created a substantial risk of death or bodily injury.
Although actual physical violence would certainly qualify, it is not necessary. It is enough if you can prove that your spouse threatened your life, intended to cause physical harm or put you at risk of serious injury.
Domestic violence is taken seriously by the family court, and, when domestic violence is present, it is critical that we ensure that both you and your children are protected through the divorce proceedings and after the divorce.
If your spouse drinks alcohol or uses drugs, that alone is not enough to get a divorce on the ground of habitual drunkenness.
We will need to prove that their drug or alcohol use is habitual and that it caused the breakdown of the marriage. This can be proven through evidence that your private investigator gathers for you, third-party testimony, medical records, credit card statements, or criminal convictions for drug or alcohol offenses.
Are There Defenses to Fault-Based Grounds for Divorce in SC?
The most common defense to fault grounds for divorce in SC is condonation.
If you know that your spouse cheated on you, you stay with them, and the adultery stops, you have “condoned” the adultery and cannot seek a divorce on grounds of adultery. On the other hand, if you were unaware of the adultery and separated as soon as you discovered it, or if your spouse renewed their adulterous relationship, condonation does not apply.
If you condone your spouse’s actions that would have been a fault-based ground for divorce, you have reconciled your marriage and cannot later use their actions as grounds for divorce.
If you are considering separation or divorce from your spouse, talk to your Myrtle Beach divorce attorney on the Axelrod team as soon as possible. We can help you take steps to protect yourself and your children, gather the evidence you will need to prove fault-based grounds for divorce, and fight for you to ensure that your interests are protected.