If you are considering filing for divorce in South Carolina, you must have a legally accepted reason for seeking it. This is called “grounds” for divorce.
In South Carolina, grounds for divorce can be fault-based, which requires placing the blame for the divorce on one party’s wrongdoing, or no-fault, which doesn’t require blame but a period of separation.
Depending on the grounds for divorce you use, it can significantly affect the outcome and terms of your divorce. A Columbia divorce lawyer can help guide you through this process.
Is South Carolina Considered a No-Fault Divorce State?
While South Carolina does have a no-fault divorce option, it is not considered a pure no-fault divorce state. There are five grounds for divorce in South Carolina, according to South Carolina Code of Laws § 20-3-10, only one of which is considered a no-fault option.
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Why Can the Grounds for Your Divorce Be Important to Your Case?
Many factors can hinge on the grounds for your divorce, including how your marital property is divided, who will get primary custody of your children, whether one party should be responsible for paying the other alimony, how much alimony should be paid, and other issues.
However, using fault-based grounds is more than just an accusation of fault. You must be able to prove it in court. Consequently, before you file for divorce, you should speak with a South Carolina family law attorney to understand the responsibilities and consequences of each and what grounds would make the most sense in your situation.
Having a knowledgeable South Carolina family lawyer on your side can help you make the right decisions for your circumstances and prevent costly and time-consuming mistakes.
South Carolina’s No-Fault Divorce Option
Like every other state, South Carolina allows for a no-fault divorce under certain circumstances. In a no-fault divorce, neither spouse blames the other for the breakdown of their marriage. Instead, they must meet specific requirements for the court to grant the final judgment.
In South Carolina, you may file for a no-fault divorce if you have continuously lived separately and apart for at least one year. It is important to remember, however, that any cohabitation or attempts at reconciliation during this period can reset the clock, beginning the separation period all over again.
No-fault options are often preferred by spouses looking for a more amicable divorce process without costly and contentious litigation.
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Fault-Based Grounds for Divorce in South Carolina
In addition to South Carolina’s no-fault grounds, fault-based grounds for divorce are also recognized. These grounds are used when one spouse has claimed the other’s behavior led to the marriage’s breakdown.
To file for divorce based on a fault-based ground, the spouse filing for divorce must provide proof to the court that the other behaved in ways that justify the end of their marriage. There are four fault-based grounds for filing for divorce in South Carolina:
- Adultery
- Habitual drunkenness or drug use
- Physical cruelty
- Desertion
Each fault-based ground can have potential consequences for the outcome of the divorce.
Adultery
As one of the most common fault-based grounds for divorce in South Carolina, a spouse filing for divorce based on adultery must prove to the court that the other was involved in an extramarital relationship and provide evidence to the court of the relationship.
This evidence can include photographs, text messages, witness statements, financial records, receipts, or other records reflecting extramarital behavior.
Habitual Drunkenness or Drug Abuse
The second fault-based ground for divorce in South Carolina is “habitual drunkenness,” or the excessive and chronic use of drugs and other substances. This behavior must be more than occasional or moderate.
For it to be used successfully in a divorce case, the spouse filing for divorce must provide evidence to the court that the other has a persistent pattern of drug or alcohol abuse that has significantly impacted their marriage.
Physical Cruelty
Physical cruelty as a fault-based ground refers to physical violence or abuse in the marriage. This ground usually refers to violent acts and physical behavior that has posed a serious threat to the health and safety of the spouse filing for divorce.
Unlike other fault-based grounds, one instance of violent behavior may be sufficient to establish physical cruelty as a ground for divorce.
Desertion
Desertion, also referred to as abandonment, occurs when one spouse leaves the other without their consent and with the intention of ending the marriage. Unlike separation, desertion is a deliberate and unjustified departure. In order for desertion to be used as grounds for divorce, the spouse filing for divorce must provide evidence to the court that the abandonment lasted for at least one continuous year.
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How Can Fault-Based Grounds Affect the Outcome of a Divorce?
Filing on fault-based grounds for divorce in South Carolina can significantly affect the outcome of a divorce, primarily in the areas of property division, alimony, and child custody.
When one spouse has been proven to be at fault for the end of the marriage, the court often considers that when making its decisions. Consequently, the “innocent” spouse may get more favorable settlement terms.
How Fault-Based Grounds Can Affect Property Division
South Carolina is considered an equitable distribution state. This means that the “equitable” division of marital property during a divorce can be influenced by many factors, including how and why the marriage ended.
Although marital misconduct does not always entitle the innocent spouse to a larger share of the marital estate, if one spouse’s misconduct has caused significant harm, such as abusive behavior or wasting marital assets on an extramarital affair, the court may award the innocent spouse a larger portion of the marital assets to compensate for this harm.
How Fault-Based Grounds Can Affect Alimony Decisions
Because the law allows courts to consider misconduct when awarding alimony, fault-based grounds can influence the court’s decisions.
When a spouse has been proven to have committed adultery during the marriage, for instance, they are generally barred from receiving alimony, even though they may have been otherwise entitled to it. Conversely, an innocent spouse may be awarded more alimony if they were subject to misconduct such as their spouse’s physical cruelty or habitual drug or alcohol use.
How Fault-Based Grounds Can Affect Child Custody and Visitation Decisions
While South Carolina courts’ primary focus in child custody and visitation decisions is the best interests of the child, fault-based grounds can enter into these decisions if they involve physical cruelty or substance abuse.
If a spouse has been found guilty of violence or abuse, it can affect their ability to gain custody of their child, and the court may limit their parental rights to protect the child from further harm. In the case of drug or alcohol abuse, the court may require treatment or regular monitoring as a condition of custody or visitation to ensure the safety of the child.
How Do You Know Whether it is More Beneficial to File for Divorce Using No-Fault or Fault-Based Grounds in South Carolina?
Whether to file for divorce using no-fault or fault-based grounds will depend on your situation and goals. While a no-fault divorce is generally less adversarial and costly, using fault-based grounds could be appropriate if you are protecting your child or seeking more favorable decisions by the court regarding your property division, custody, and alimony because of your spouse’s misconduct.
Some factors to consider should include
- How adversarial is your relationship?
- Do you have to prove your spouse’s wrongdoing?
- How likely will your spouse’s wrongdoing affect the outcome of your divorce?
- Could the contentious nature of your divorce affect your child and their relationship with your ex-spouse?
- How much time, money, and emotional energy are you willing to devote to litigating your divorce?
Getting the Assistance of an Experienced Columbia, South Carolina, Family Law Attorney
Understanding your options for grounds for divorce will be an important first step if you are considering filing for divorce in South Carolina.
Whether you choose to file for a no-fault divorce based on a one-year separation period or pursue a fault-based divorce, your choice can have a significant effect on the financial, emotional, and legal outcome of your divorce case.
Working with an experienced family law attorney in Columbia, South Carolina, will ensure you make decisions that are right for your circumstances and achieve the best possible outcome for yourself and your family. At Melone Hatley, P.C., we are your dedicated partners throughout the divorce process.
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