A spouse seeking a divorce in South Carolina can allege both a fault and no-fault based divorce. Fault divorces require the filing spouse to prove additional facts that would entitle him or her to a fault-based divorce. A No-fault divorce only requires the filing spouse to show that the couple was living separate and apart for at least one year before a final divorce decree can be issued by a judge.
Why does it matter if someone alleges grounds for a fault-based divorce? South Carolina courts can take fault into consideration when dividing the marital property between the spouses. If the conduct of one spouse is worse than the conduct of the other spouse, the court may determine that the innocent spouse is entitled to a larger portion of the property out of fairness. If both spouses are equally guilty of bad conduct, then the court will take the bad actions of both parties into consideration on the division of assets.
A fault-based divorce is typically granted when one spouse causes the couple to divorce. There are various types of conduct that constitute the grounds for a fault-based divorces such as: Adultery, Physical Cruelty, Habitual Intoxication, and Desertion.
Adultery requires the spouse seeking the fault-based divorce to show the other spouse had the inclination and opportunity to commit adultery. There is no need to show sexual intercourse occurred between the spouse and a third person, because the court in South Carolina has deemed proof of mere “sexual intimacy” to be enough to satisfy the opportunity and inclination standard.
For a spouse to prove this, the one spouse’s conduct must create a substantial risk of serious bodily harm, not just a singular isolated incident of abuse. In South Carolina, verbal and emotional abuse are not enough to satisfy this requirement.
In order to make this claim, one spouse must prove that the drinking or drug use has caused a breakdown of the marriage. The spouse seeking to be divorced on the basis of the intoxication must show how the intoxication problems have affected the marriage and / or the parenting of the children.
This rationale is rarely used in South Carolina because of its over-lap with the requirement for a No-Fault Divorce that the spouses live separately and apart for a year or more. To prove desertion, a spouse seeking a fault-based divorce must show that there was no reasonable cause for the other spouse to leave the marital home. If a spouse leaves in order to obtain a No-Fault Based Divorce, then a court may hold that the spouse actually deserted the other spouse.
Defenses apply specifically to each of the Fault-Base allegations, but the most commonly used defense for all four allegations is condonation. Condonation is the conditional forgiveness of the behavior which would lay the groundwork for a fault-based divorce. For this defense to be successful the innocent spouse must be aware of the behavior and decide to remain married to the at fault spouse. This means a spouse that learns of adultery many years after the conduct has taken place can still seek a Fault-Based Divorce.
Those are awarded when the couple tells the court that they need a divorce because they are no longer compatible. In South Carolina, it is required that the couple be living separately and apart for a year to get a no-fault divorce. The court also requires that the couple lived in South Carolina long enough to justify the court’s jurisdiction and that the couple had a valid marriage prior to the separation.
Sometimes No-Fault divorces are uncontested and proceed through a court hearing only to be formalized in front of a judge by seeking an approval of settlement. Other times a hearing is only necessary to provide evidence to the court of the spousal separation requirement and determine any jurisdictional issues with granting the divorce. As long as both spouses live in South Carolina or if one spouse lives in South Carolina, then the court will have jurisdiction to issue a divorce decree.
Divorces are extremely difficult and emotionally taxing events for all parties involved. Our firm seeks to streamline the divorce filing process and create an atmosphere that provides comfort and support to families in uncertain circumstances. We work tirelessly for our clients’ interest to get them the best result. If you have questions, contact Jennifer with Henderson & Henderson at 843-212-3188.