Getting a divorce in South Carolina can become complicated. Some states are considered “no-fault divorce” states and have no waiting periods for a divorce to be finalized. South Carolina, however, recognizes both no-fault and fault-based grounds for divorce. For a no-fault divorce to be finalized, the two spouses must have lived separately without cohabitation for over one year. There are only four-fault based reasons a person can divorce their spouse within at least three months of applying for a divorce.
- Desertion for a period of one year;
- Physical cruelty;
- Habitual drunkenness and/or habitual intoxication based on the use of any narcotic drug; or
- Living separately and apart, without any cohabitation, for a period of one year.
Of note, South Carolina law specifically states that a married couple cannot plan, or “collude” together, to engage in the above conduct for the purposes of getting a divorce. Rather, the divorce request will be denied if it appears, to the satisfaction of the court, that the parties engaged in such conduct.
The court must also be satisfied that reconciliation is not an option.
Adultery, desertion, physical cruelty, and habitual drunkenness are considered “fault-based” divorce, whereas a mutually agreeable year-long separation is considered a “no-fault divorce.”
Adultery can, of course, mean sexual intercourse with someone other than one’s spouse. However, in South Carolina, the behaviors that may be considered adultery are broader than that. Sexual intimacy can be considered sufficient to meet the requirement of adultery. People often wonder how they might prove adultery; sexual relations rarely take place in public. The good news is that you do not have to prove adultery beyond a reasonable doubt. Rather, in South Carolina, you have to establish that your spouse was inclined to have sexual relations of some kind with a person other than you and that they also had the opportunity to do so. “Opportunity” does not refer to vague allegations that your spouse theoretically could have engaged in adultery on any given day when they said they were at the store or at the office. Rather, South Carolina requires some proof that there was a concrete opportunity. This would mean something like documentation of your spouse’s car in the driveway of their presumed lover, between the hours of 4:15 p.m. and 7:30 p.m.
Desertion for a Period of One Year
Desertion for a period of one year is legally distinguishable from the mutually agreed upon year-long separation required for a no-fault divorce. In desertion cases, one spouse leaves the residence over the objections of the other spouse. The leaving party must have had no intention of ever cohabitating again. A year must pass in a desertion case, just as with a mutually agreed-upon separation. When deciding how to file for divorce, it is a good idea to discuss grounds with a qualified attorney. For example, filing with a fault-based desertion claim may put you in a better position. This is because, in South Carolina, the judge is allowed to consider desertion when deciding how to divide the marital property, child custody arrangements, and in some cases, even whether you will be reimbursed for costs and attorneys’ fees.
Physical cruelty can have its common-sense meaning. Hitting, slapping, biting, punching, hair pulling, and pushing are all examples of physical cruelty. But “physical cruelty” is more expansive than that in South Carolina. In addition to actual physical cruelty, other actions can constitute physical cruelty. If an action is life-threatening, such as pointing a gun at someone, this action alone can constitute physical cruelty. Alternatively, an action that appears to show an intent to do serious bodily harm can qualify. Finally, if an action appears to indicate a risk of serious bodily harm in the future, it may qualify as physical cruelty. There are many ways to prove physical cruelty. Witnesses, including the victim, may provide testimony. Documentation of injuries, such as pictures, or medical records can prove physical cruelty. Police reports, 911 calls, criminal convictions, and restraining orders are all sources of evidence to establish physical cruelty.
Habitual Drunkenness and/or Habitual Intoxication Based on the Use of any Narcotic Drug
Habitual drunkenness does not necessarily mean that the person is an alcoholic – although that can be what it means in many cases. “Habitual” is not the same as “constant.” Instead, “habitual” means that it happens regularly. Habitual drunkenness means regular intoxication. A glass of wine at dinner each night is habitual, but, depending on the size of the glass, not habitual drunkenness. The intoxication can also be based on the use of any narcotic drug. This includes both illegal drugs and prescription drugs. Just as with the glass of wine at dinner example, the regular use of prescription pain killers can be habitual without being considered habitual intoxication. Regular and sustained abuse of those same prescription pain killers, however, can be considered habitual intoxication.
Couples that have lived apart for one year, upon mutual agreement, may file for a no-fault divorce at the end of the year. Note: it is important that the spouses live separately. Living separate lives, even in separate bedrooms in the same house, does not qualify for the requirement that the couple lives apart. Additionally, during this one-year separation, there can be no nights wherein the spouses share the night together. This starts the clock over again.
A proposed bill asked for expanded reasons to legally divorce
In March of 2019, South Carolina lawmakers considered legislation that would expand the fault-based grounds for divorce. The bill was approved by a House subcommittee, and added the following grounds for divorce before the one-year no-fault period:
- The use of illegal or illicit drugs
- willful mistreatment that could destroy the mental or physical well-being, happiness, and welfare of a spouse and make living together unsafe or intolerable
Rep. Mandy Powers Norrell, a cosponsor of the bill, said that “There are situations where there is not necessarily physical abuse but there’s emotional abuse and that is something that I think we’ve really come to recognize as a society.”
Unfortunately, just because a bill passes a subcommittee does not mean it will pass a full committee, much less the House floor. This bill died in committee. The grounds for divorce in South Carolina remain the same as they were.
If You Are Thinking of Getting a Divorce
If you are thinking of getting a divorce, there are many things that need to be considered. These things include what is best for your family, including you and your children. Property division is also something that needs to be carefully considered and planned out well in advance. Divorce decisions, including the type of divorce grounds to cite in court documents, require careful consideration and should not be made in haste. Having a well qualified Greenville South Carolina divorce attorney on your side will help you map out your options and lead you to a decision that works for your particular, unique facts and circumstances. Every divorce is different. What worked best for someone else may not be what will work best for you and your family. The lawyers at the Elliott Frazier Law Firm, LLC can help you make sound decisions about your future. Contact us today for a consultation.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.