No Fault Divorce In South Carolina

I frequently get asked "what are the grounds for divorce in South Carolina" and "do I really have to wait a year to get divorced?"  The answer, as always, is it depends.  In South Carolina there are two types of divorces- fault and no fault.  No fault divorces can be granted upon the separation of one year and I'll discuss that process in this post.  At fault divorces do not have a year long separation requirement and I will discuss the at fault grounds in another post.     

The only way one can obtain a no fault divorce in South Carolina is by "living separate and apart without cohabitation for a period of one year."  A divorce on this ground can be granted immediately once responsive pleadings are filed, or thirty days after the defendant is served if the defendant does not respond.  For a divorce under separation of one year both parties must be aware of the fact that they are separated before a divorce can be granted.  This is important for our military personnel because separations caused by military service cannot be used as a basis for divorce unless the parties separated before the forced separation for reasons other than military service.  

The term "separate and apart" for the purpose of a no fault divorce means that the spouses are not living together under one roof.  The South Carolina Supreme Court has found that even when the husband and wife testified that they lived in separate rooms and did not have sex for the year long period, that the spouses did not live separate and apart in the eyes of the law and therefore did not meet the requirement to obtain a divorce.  This means that the husband and the wife must live in separate houses, apartments, etc. during the year long separation.  

The Courts, however, have been unclear whether spouses who have sexual relations during the one year separation or attempt to reconcile should be forced to restart the one year clock after the event before they are divorced.  No South Carolina courts have directly addressed this concern, however, family court judges will examine the intentions of the husband and wife and the facts surrounding the sexual intercourse.  As a practical matter I would advise all my clients that some family court judges will rule that an isolated act of sexual relations requires the one year period of separation to restart and I advise my clients against this.    

To obtain a no fault divorce in South Carolina, one does not have to file anything with the courts to start the one year clock.  One can file as soon as the year is over and the court may schedule the hearing on the no-fault immediately upon filing as long as the other spouse is served with the action and has either answered or allowed the thirty day time frame for an answer to elapse.  

If you or a loved one has any questions regarding your rights during a divorce please do not hesitate to contact Thrower & Schwartz.  

 

 

Grounds For An At Fault Divorce in South Carolina

As I discussed in an earlier blog post, the no fault ground for divorce in South Carolina is a one year separation.  In this post I’ll go over the four at fault grounds which will allow you to get divorced without the one year of separation.

The four at fault grounds for divorce in South Carolina are adultery, physical cruelty, habitual intoxication or narcotics use and desertion. 

Adultery- In order to obtain a divorce based on adultery, one doesn’t need to prove the spouse actually cheated.  The legal standard for adultery is that the spouse had the inclination and opportunity.  This means that there doesn’t need to be actual proof of sexual intercourse.  This means that if a spouse spends the night in a hotel with a paramour, they have the opportunity and inclination to cheat.  There doesn’t need to be actual video or picture evidence of the act.  The courts have also found that adultery doesn’t always mean sexual intercourse, it could be found with proof of mere “sexual intimacy.”  Often hiring a private investigator is useful in proving adultery. 

Physical cruelty- If there is actual physical injury it must be more than an isolated instance of abuse.  However, if there is no actual physical injury, a divorce based on physical cruelty can be granted if one spouse’s conduct created a substantial risk of death or serious bodily harm.  For example, firing a gun at a spouse but missing would be enough to rise to the level of physical cruelty needed for this at fault divorce. 

Habitual intoxication- To obtain a divorce on this ground one spouse needs to prove more than occasional drinking or drug use.  Rather, one must prove that this drinking or drug use has caused a breakdown in the marriage.  Proof can be medical records for rehab, criminal records with convictions related to alcohol or drug use, financial records proving frequent alcohol purchase or work and employment records that show problems with the spouse’s employer due to drugs or alcohol.

Desertion- Although this is formally a ground for separation, because the time frame for a divorce based on desertion is one year, the same time as a no fault divorce, the use as a ground for divorce in South Carolina is rarely if never used anymore. 

Although these four at fault grounds can be used to obtain a divorce, there is a common defense to all four- condonation.  Condonation is the conditional forgiveness of the behavior which would lay the ground work for an at fault divorce.  This means the innocent spouse is aware of the behavior but still decides to remain in the marriage with the at fault spouse.  If the adultery happened years prior and the innocent spouse didn’t know about it then it could still be grounds for an at fault divorce years later.  On the other hand, if the spouse knows of the adultery and remains with the cheating spouse and forgives him or her, then the fault ground for adultery no longer remains a ground for a divorce. 

A spouse can file for divorce on any of the at fault grounds without being separated from the other spouse.  However, at a temporary hearing the burden of proof will be on the innocent spouse to prove with solid evidence that fault ground in order to give the Judge the power to remove the spouse from the marital home.  In any at fault divorce action, the court cannot have the hearing on the divorce until 60 days after the filing for divorce and cannot grant a divorce until 90 days after the divorce action was filed. 

If one of the spouses needs help determining any issues stemming from a separation such as child custody, child support, alimony, division of assets or property, visitation but do not have a ground for a divorce, that spouse may file an action for “separate support and maintenance.”

If you, a friend or a loved one is seeking a divorce or defending a divorce and would like legal advice, contact Thrower & Schwartz.  Ryan and Bill will be glad to meet and discuss the situation.    

 

 

Adultery in South Carolina

When people are suspicious of their significant other cheating, or catch them cheating, they usually wonder how they will be able to prove the infidelity in family court.  Clearly, sexual intercourse is adultery but what about other forms of infidelity?  South Carolina courts have stated that South Carolina hasn’t determined exactly what other acts may constitute adultery.  For example, the South Carolina Supreme Court found that homosexual activity can constitute adultery, which gives the impression that oral sex is enough for a divorce based on the grounds on adultery.  However, because the actual sexual act is rarely proved it most likely won’t make a difference in most cases.

Proving Adultery in South Carolina

Because sexual conduct mostly, and should, occur behind closed doors, it is nearly impossible to find direct proof of the cheater in the act.  However, in South Carolina one only needs to show circumstantial evidence, that the spouse had an inclination to commit adultery and that he or she had the opportunity to do so.  These requirements are referred to by family lawyers as the “inclination and opportunity.”

What is inclination?

When does spending time with a member of the opposite sex constitute more than friends?  People are allowed to have friends of the opposite sex which means that just because they are behind closed doors together doesn’t mean there is infidelity.  Because of this reason the courts require proof that the spouse had the “inclination” or the character or to cheat.  Proving inclination can be done several ways: love letters, texting, emails, or other written material may give rise to evidence of infidelity.  Joining online dating sites or dating applications on one’s phone may also be used as evidence.  Other examples would be a private investigator having photographs of the cheating party holding hands with a paramour or kissing and occasionally there is evidence of over night stays which would prove the individuals are more than friends.

What is Opportunity?

To prove “opportunity,” you must prove that the cheating spouse and his lover were behind closed doors long enough for there to be time to commit a sexual act.  There are no black and white rules for exactly what needs to be proven.  The most concrete evidence of an opportunity to commit adultery comes through a private investigator who obtains footage or pictures of the cheaters being in the same home or a hotel room.   Other forms of evidence can come from neighbors or friends; however their testimony could be biased and won’t give us the documentation and hard proof we can obtain from a private investigator.  Other forms of evidence of opportunity are text messages, Facebook posts or pictures, credit card statements. 

Is there A Defense to Adultery?

Yes, it is called condonation and can be a defense against a divorce.  Condonation is when one party, who has been cheated on, takes actions that imply that he condoned the adulterous behavior and that the parties are reconciling.  If the infidelity was discovered, you could forfeit any claim of adultery if you reconcile with the cheating spouse.  Condonation can occur by having sexual relations with the spouse, letters or emails forgiving the infidelity, or moving back in together.  Again, there are no clear, black and white rules on condonation either and it will but up to the Judge to determine the facts and decide whether adultery was forgiven.

Advice If You Think Your Spouse Is Cheating

The Attorneys at Thrower & Schwartz strongly recommend consulting with them.  Every case has different facts and circumstances, and we need to learn specific facts of your situation to advise you how to proceed.  We may recommend hiring a private investigator, having a home computer looked at by a computer expert for evidence of infidelity or tracking down witnesses.  Depending on the facts of your specific case there could be numerous ways to discover what you are looking for and to gather evidence of it for court.  Please at least consult with an attorney before you go searching alone. 

If you have a family law issue please do not hesitate to contact the lawyers at Thrower & Schwartz.