As divorce lawyers in Charleston, South Carolina, clients frequently ask us what are the grounds for divorce in South Carolina. In South Carolina, there are five (5) grounds for a divorce: (1) adultery, (2) habitual drunkenness or narcotics abuse, (3) physical cruelty, (4) desertion for a period of one, and (5) one year’s continuous separation (which is considered a “no-fault” ground for divorce). South Carolina doesn’t recognize mental cruelty or emotional abuse as grounds for divorce.
Fault Grounds for Divorce in South Carolina
The following grounds are based on the fault of one or more of the parties. A determination of fault by the court can impact whether one spouse pays for the other spouse’s attorney’s fees and can also be a factor in deciding how much alimony should be paid and how to divide the parties’ assets.
1. Proving Adultery in South Carolina
To establish adultery, you don’t need to prove it actually happened. Instead, you can prove adultery by showing “inclination and opportunity.” Inclination is established when you can show that a spouse had a romantic interest outside of the marriage. For example, if the spouse joined online dating sites or sent romantic texts and emails to another person, that is “inclination.” Opportunity is established when you can demonstrate that the spouse had a chance to act upon their inclination. For example, if a husband spends the night in a hotel room with a woman other than his wife, that is an opportunity. In South Carolina, proving that one party committed adultery will result in that party being barred from receiving alimony. For more information on adultery in South Carolina, read our article here regarding how adultery can impact your divorce.
2. Proving Habitual Drunkenness or Narcotics Abuse in South Carolina
To prove this ground, you must show that your spouse’s habitual abuse (not on a single occasion or rare occasions) of alcohol or narcotic drugs caused the marriage’s breakdown and that the abuse existed at or near the time of filing for divorce. There are many ways to prove that the abuse caused the marriage’s breakdown. For example, your spouse may have lost their job due to drinking or drugs or your spouse may be spending the family’s money on drugs or alcohol.
3. Physical Cruelty
To obtain a divorce on the ground of physical cruelty, one must be able to show their spouse’s conduct created a substantial risk of death or serious bodily harm. The South Carolina Court of Appeals previously held that a wife was entitled to a divorce on the ground of physical cruelty based on a single assault by her husband when he shoved her into a wall, verbally abused her, and then broke her telephone when she tried to call for help, which left the wife fearful for her safety. The Court also noted that the wife had testified to other threatening events that ended in the assault, all of which indicated that the husband had the intent to seriously harm his wife.
In South Carolina, the spouse alleging physical abuse must prove his or her case by a “preponderance of the evidence,” which is evidence that convinces the court of its truth. The family court judge will make the ultimate determination, and your divorce lawyer will be able to review the facts of your case and what evidence you have and to help you decide if you have enough to evidence to prove your case.
Under South Carolina law, to be a ground for divorce, the physical cruelty must be “actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe.” A single incident of assault can be sufficient physical cruelty. Also, actual physical contact or bodily injury isn’t required to seek a divorce for physical cruelty if the act was (1) life-threatening, (2) indicative of an intention to do serious bodily harm, or (3) of such a degree that there appears to be a risk of serious bodily harm in the future. The family court will consider whether the abuse was provoked by the victim, but even if provoked, it will consider whether the abuse was proportionate to the provocation. For example, in one South Carolina case, the Court denied a divorce on the ground of physical cruelty. The Court found that “the altercation leading to the parties’ estrangement was the only incident of alleged physical cruelty” and that the spouse who alleged abuse “may have been the aggressor in another incident.”
Evidence of physical cruelty can come in many forms. Of course, the abused spouse may testify about the other spouse’s actions. Others may have witnessed the event(s). Witnesses who didn’t actually see the event might still be able to testify that the alleged victim was distraught or frantic just moments after the alleged incident or might testify that they saw fresh injuries. These witnesses are used to corroborate the testimony of the victim. Sometimes, photographs of injuries may be introduced into evidence. It is possible that the 911 recording of the call to the police is introduced, although we have seen these calls actually disprove the claims, as well. For example, if a spouse calls 911 and says that he or she was just attacked seconds ago, but the person is calm and collected, it can hurt that person’s credibility.
Evidence can come in many shapes and forms, and if you are seeking to prove physical cruelty, use your knowledge about the event(s) and give your lawyer ideas to help find valuable evidence in your particular case. If the alleged abuser is charged with criminal domestic violence (CDV) or assault, sometimes the person will be convicted of the charge or plead guilty. In either event, that person won’t be able to take a different position in family court and claim that the abuse never occurred.
Other than being a ground for divorce, physical cruelty can have drastic effects on a divorce case. If custody is involved, the abuser is unlikely to get custody and their visitation may be severely restricted or they may have no visitation at all. Also, physical abuse is a factor for the Court to consider when awarding alimony or when dividing the marital property. For example, in one South Carolina case, the family court awarded permanent alimony on a marriage that was barely over one year long where one spouse was abusive on repeated occasions. Also, at a temporary hearing, the non-abusive spouse might have a better chance of getting possession of the home while the case is pending.
4. Abandonment/Desertion for a Period of One Year
While divorce on the ground of desertion was once the most common ground for divorce, this is not a ground that we see very often in family court nowadays. Rather, most divorces are granted on the ground of one year’s continuous separation and in fact, less than one half of one percent of divorces are granted on the ground of desertion.
No-Fault Ground for Divorce in South Carolina
Proving One Year’s Continuous Separation in South Carolina
To obtain a divorce on the ground of one year’s continuous separation, the parties must live separate and apart for at least one year. The parties do not need to file anything with the court to start this one year clock, but simply need to begin living in separate homes. Proof that the parties have been separated for over a year can be established by the testimony of the spouse asking for the divorce establishing that the parties haven’t cohabited (lived together in the same house) for more than one year and an independent witness who testifies to the same thing.
If you are considering divorce, contact our office to set up a consultation with one of our experienced family law attorneys.