What is “Marital Misconduct” and How Can It Affect My Divorce in SC?

What is “marital misconduct” and how can it affect your divorce in SC?

The short answer is that the family court might punish a spouse for “behaving badly,” whether that involves violence, substance abuse, adultery, or bad parenting. SC’s divorce laws instruct family judges to consider marital misconduct when awarding alimony or dividing marital property, for example.

In this article, we will discuss marital misconduct and how it affects divorce proceedings in SC, including:

• How marital misconduct is defined in SC law,
• Types of misconduct that are considered by the family court, and
• How misconduct can affect issues like spousal support and division of property.

What is Marital Misconduct?

“Marital misconduct” seems like a broad term, but it has a very specific meaning for purposes of SC divorce law.

Marital misconduct could mean any significant misconduct, including a fault-based ground for divorce, even if it is not alleged as a ground for divorce.

But the misconduct must have:

1. Affected the economic circumstances of the parties, or
2. Contributed to the breakup of the marriage.

Also, the misconduct should not be considered by the court if it happened after the earliest of:

1. The entry of a temporary order in a divorce or separate maintenance action,
2. The formal signing of a written property or marital settlement agreement, or
3. The entry of a permanent order for separate support and maintenance or a final divorce decree.

Types of Marital Misconduct

What is marital misconduct?

It could mean many different things. Some common examples include:

• Adultery,
• Domestic violence,
• Substance abuse,
• Gambling,
• Attempting to conceal or withhold marital assets, or
• Malicious actions that threaten the other spouse’s life or safety.

What is not considered misconduct in divorce proceedings?

• Adultery that happens after the spouses have signed a settlement agreement,
• Legitimate disputes over the division of marital property, child custody, or other divorce-related issues, or
• “Social drinking” that does not affect the parties’ economic circumstances or the breakup of the marriage.

How Does Marital Misconduct Affect Divorce Proceedings?

If the family court finds that there is marital misconduct, how does that affect your divorce proceedings? Apart from the various fault-based grounds for divorce, there are only two specific situations where the court must consider marital misconduct during divorce proceedings – when awarding alimony and when dividing marital property.

A finding of misconduct can affect every aspect of your case, however – don’t expect any favors from a family court judge who now thinks that the breakup of the marriage was your fault or that you are a spousal abuser…

Alimony

When deciding whether to award alimony (and how much), the family court must consider any marital misconduct of either or both parties, including adultery when it happens before the signing of a settlement agreement or permanent order.

SC Code § 20-3-130 (C)(10) says:

(C) In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:

… (10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties…

Division of Property

The family court is also required to consider any marital misconduct as a factor when dividing marital property.

SC Code § 20-3-620(B)(2) says:

(B) In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

…(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement; or

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties…

Child Custody

In addition to the financial considerations when the court is considering spousal support and division of marital assets, misconduct can also impact child custody decisions.

Many of the factors that the family court must consider when determining the best interest of the child – the single overriding factor when determining child custody – may be impacted by the court’s finding of misconduct.

For example, the factors found in SC Code Section 63-15-240(B) include:

• The capacity of each parent to understand and meet the needs of the child,
• The past and current interactions of the child with the parent,
• The actions of each parent to encourage the child’s relationship with the other parent,
• Manipulative or coercive behavior to involve the child in the parents’ dispute,
• Disparagement of the other parent in front of the child,
• The ability of the parent to be actively involved in the child’s life,
• The stability of the child’s residence,
• The mental and physical health of the parents,
• Whether the child or a sibling has been abused or neglected,
• Whether a parent has committed domestic violence, and
• Other factors the court considers necessary.

Spousal abuse, substance abuse, gambling addiction, emotional or verbal abuse, exposing the child to alcohol, drugs, or bad influences, or overnight guests when the child is home are all circumstances that could be considered 1) marital misconduct that may affect alimony or property division and 2) harmful conduct that may prevent the parent from getting full custody of their child.

Got Axelrod?

Contact your SC divorce attorney immediately if you are considering separation or divorce. Your divorce lawyer on the Axelrod team will answer your questions and help you to determine your next steps including gathering the evidence to prove (or disprove) marital misconduct.

Call Axelrod and Associates now at 843-258-4254 or send us a message through our website to find out how we can help.