In South Carolina, there are four (4) fault-based grounds for divorce and one (1) no-fault ground set out in S. C. Code of Laws Section 20-3-10. The fault-based grounds are: adultery; habitual drunkenness or drug abuse; physical abuse; and desertion. The no-fault ground is continuous separation for at least one year.
One year’s separation is the most common ground for divorce, because it is the easiest to prove. You do not have to show malicious intent, you just have to show that you and your spouse have been apart for more than a year without reconciling. You don’t even have to go to court or file any court documents at the beginning of the year, as long as you have a corroborating witness at the end of the year who can affirm that you and your spouse were separated for the whole year. But keep in mind that if you attempt to reconcile and cohabit (live together as spouses) even for one night, you may have to start the year over.
To prove adultery, you don’t need to prove actual adultery, but you have to show compelling evidence of opportunity (overnight visits, private rendezvous, etc.) and inclination (romantic communications, public displays of affection, etc.). A confession of adultery by your spouse is not enough without evidence and corroborating testimony from others. Typically, the best witness is a private investigator, since he or she knows from experience what evidence to gather for your case. Increasingly, photos and communications sent via text and social media like Facebook® are used to prove adultery.
To obtain a divorce on the ground of habitual drunkenness or drug abuse, you do not have to prove continual intoxication, but you do have to prove that abuse of alcohol or drugs has undermined the relationship to the point that the marriage cannot continue. Medical records, employment records, criminal records, and financial records are typically used as evidence to augment eyewitness testimony of alcohol or drug abuse.
Physical cruelty does not require a “beating” in order for you to get your divorce. It does, however, require at least an actual or reasonably perceived threat of physical harm that makes continuation of the marriage impossible. Some examples of such “non-beatings” are: grabbing, pushing or forcefully confining the victim spouse; the pointing of a loaded gun at the victim spouse; and attempting to run over the victim spouse with an automobile.
Desertion is the least used of the fault grounds. Since it requires proof of malicious intent in addition to one year’s separation, it is much simpler to just acquire a divorce based upon the no-fault ground of one year’s continuous separation.
Defenses. Keep in mind that the most effective defenses to these fault-based grounds for divorce are forgiveness and condonation. If, with full knowledge, you have forgiven or condoned your spouse’s wrongdoing, then you may lose your right to a divorce on those grounds. Therefore, the more time that passes between the wrongdoing and your filing for divorce, the greater the chances your spouse will raise these defenses.
Mitch Norrell is a Lancaster SC divorce lawyer with over 25 years experience in Family Court cases. This post is provided free of charge for general information only, and not as legal advice for your particular circumstances. To schedule a consultation, please contact us.