If you are one of the one in three women, or one in four men who experience domestic abuse in your lifetime, you may find yourself thinking of getting a divorce.
In South Carolina, physical abuse is considered a legal basis for a “fault divorce.” In other words, unlike your friends who may have had to spend a year living apart from their spouse before they can file, you may be able to file for divorce immediately.
What Qualifies as Physical Cruelty
First and most obvious, physical violence qualifies as physical cruelty under South Carolina law. This can include being pushed, punched, slapped, bitten, shoved, body slammed, and hair pulling. Any physical contact intended to cause pain is considered physical abuse. Sexual assault is also considered physical abuse. Contrary to what some people believe, spouses do not have a “right” to have sex with their partner; both women and men do have a right to say “no” – even to their wife or husband.
Direct physical contact, however, is not necessarily required to prove physical cruelty. Certain actions, standing alone, can qualify as physical cruelty, such as if someone engages in life threatening actions. This could include, for example, someone saying, “I’m going to kill you,” while waving a weapon. Threats of future harm can also constitute physical cruelty, such as saying, “If you leave me, I will kill you.” Even threats to harm, rather than kill, can qualify as physical cruelty.
Ways To Prove Physical Cruelty
In South Carolina, the most obvious way to prove physical abuse may be if your abuser has pled guilty to or has been found guilty of a criminal charge of assault or rape against you. This is because the standard of proof in a criminal case is “beyond a reasonable doubt,” and the standard of proof in a divorce case, for proving physical abuse, is “the preponderance of the evidence.” Because this standard is lower, if your abuser’s conduct meets the higher criminal standard, it will certainly meet the lower standard required for a fault divorce. Police reports and 911 calls can also provide a basis for a claim of physical cruelty.
Of course, many women do not involve the police when they are in an abusive situation. Other times, cases are not prosecuted. Do not despair; there are many ways to prove physical abuse. Sometimes, physical cruelty occurs in front of witnesses. If this is the case, the testimony of the witnesses can be offered, if need be. Frequently, the results of physical cruelty are evident. This can include bruising, scratches, clumps of hair. It can also include hospital records, or other medical records, that document injury – even if you were not forthcoming about how you were injured at the time.
What to Do If You Are in an Abusive Relationship
Only you can decide what is the best course of action for you and your children. Information, however, can be essential in making choices for you and your family. The National Coalition Against Domestic Violence (NCADV) has resources available both for victims of physical cruelty, and their allies. If you are considering a divorce from someone who is physically cruel, NCADV recommends planning ahead. One of the steps you should take is to talk to a qualified family law and divorce attorney about the specific facts and circumstances of your case.
How Physical Cruelty Can Impact Your Divorce
In cases where the divorce is contested, the judge is given strong leeway in making determinations about how the marriage will end. The court can consider physical cruelty when deciding whether to award the following:
- Child custody;
- Parenting time;
- Custody of pets; and
- Division of assets.
Alimony is an award of money from one spouse to the other spouse after the divorce. Alimony can be ordered monthly, paid in a lump sum, or rehabilitative alimony. The court can also order reimbursement alimony. When considering whether to award one spouse alimony from the other, the court may consider the marital misconduct or fault of each party, where the conduct contributed to the breakdown of the marriage.
In determining child custody, courts are to consider, first and foremost, the best interests of the children. It is difficult to imagine a court making a determination that living with an abuser is in the children’s best interests.
What type of parenting time, and how much parenting time, is awarded to each parent is based on the facts and circumstances in each individual case. Physical cruelty, if well established, may lead to an order for supervised visitation.
Custody of Pets
If you and your spouse cannot agree on the division of the pets, the court will make that determination for you. The decision about who gets the custody of your pets can be influenced by the fact that your spouse committed physical cruelty.
Division of Assets
In contested cases, the court decides how the assets of the marriage are divided. Just as with alimony, the statutes in South Carolina specifically call for the court to make decisions about the division of assets based on what the court finds important. Included on the list of things the court can consider is the marital misconduct of one of the parties.
What To Do If You Are Considering a Divorce From A Physical Abuser
If you are currently being subject to physical cruelty, your first priority is to be safe. Access the resources available to you to create a plan and proceed in as safe a way as possible. Speaking to an attorney well versed in family and divorce law can make a world of difference. Having handled many divorce cases with allegations of physical cruelty, the attorneys at the Elliott Frazier Law Firm, LLC have the ability to handle your case with skill and compassion. Divorce is never easy. Having an experienced divorce law professional in Greenville by your side through every step of the process can make the process of divorce a bit more easy to take.
Contact the attorneys at Elliott Frazier Law Firm, LLC to discuss your divorce and child custody needs.