As divorce lawyers in Charleston, South Carolina, we regularly deal with situations of abuse between spouses. Many of these cases involve criminal domestic violence and Orders of Protection in family court. In this article, we discuss how physical abuse (physical cruelty) can be a ground for divorce in South Carolina and what other effects physical abuse may have on a divorce.
Proving Physical Cruelty in South Carolina Family Court
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.
Physical cruelty is a “fault-based” ground for divorce. 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 common sense and give your lawyer ideas to help find valuable evidence in your particular case.
If the alleged abuser is criminally 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. To learn more about Criminal Domestic Violence (CDV) in South Carolina, click here.
What Other Effects Does Physical Cruelty Have on a Divorce Case?
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 none. 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 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.