LEGAL SEPARATION

There are five grounds for divorce in South Carolina: one no-fault ground and four fault grounds, which are adultery, physical cruelty, habitual drunkenness and desertion. Divorce cases can also include other issues arising out of the marriage such as custody of children, child support, visitation, division of marital assets and debts, and alimony.

DIVORCE

There are five grounds for divorce in South Carolina: one no-fault ground and four fault grounds, which are adultery, physical cruelty, habitual drunkenness and desertion. Divorce cases can also include other issues arising out of the marriage such as custody of children, child support, visitation, division of marital assets and debts, and alimony.

Desertion (Also known as abandonment)

  • There are four factors that must be proved to get a divorce on the grounds of desertion: 1) your spouse has been gone for one year, 2) your spouse has no intention of returning, 3) you did not consent to the departure AND 4) you did not cause the departure.
  • A no-fault divorce only requires you to show that you and your spouse have been separated for a year so no one does desertion divorces any more.

No-fault ground

  • requires you and your spouse to physically separate (not stay under the same roof) for 365 days. On the 366th day, you can file for divorce.

Habitual Drunkenness

  • Habitual drunkenness divorce applies to a habitual use of alcohol or drugs, including abuse of prescription pain medications, that has led to the breakdown of the marriage.
  • Evidence can be presented in various forms such as records showing substance abuse treatment, records showing criminal conviction for possession/use of drugs and witness testimony. There is no waiting period to file for a habitual drunkenness divorce, but just as with adultery and physical cruelty, a hearing granting the divorce cannot be held sooner than 90 days after filing.

Adultery

  1. You can prove that an adultery has been committed through circumstantial evidence that shows “inclination and opportunity”. This means your spouse has shown a desire to have a sexual or a romantic relationship with someone else and has acted on that desire.
  2. You don’t need to prove the actual adultery. Proof of adultery can be shown through a combination of evidence including email and text message records, telephone records, contents of a computer hard drive and use of a private investigator.
  3. There is no waiting period, you can file for adultery divorce immediately upon learning of the adultery.
  4. Condonation is a defense to an adultery divorce. Condonation means that after you learn that your spouse had a sexual relationship with someone else, you remain in the marriage and continue to have a sexual relationship with your spouse. Therefore, there must be one final act of adultery that you do not condone before you can file for an adultery divorce.

Physical Cruelty

  • Physical cruelty is “actual physical violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe”, Gorecki v. Gorecki, 387 S.C. 626, 693 S.E.2d 419 (2010). You don’t have to prove actual physical injury if your spouse engaged in conduct that created a substantial risk of serious bodily harm or death. There is no waiting period to file for a physical cruelty divorce.
  • Evidence of physical cruelty can take many forms and will vary from case to case depending on the circumstances of that case.
  • You can ask for an Order of Protection in Family Court when you need a restraining order quickly and don’t yet have a lawyer. You can request an order of protection against a spouse, former spouse, the father or mother of your child, the person you are living with or used to live with whether in a gay or straight relationship. You can get the petition for an order of protection from the Clerk of Court of the family Court. The clerk’s office can’t give you advice or help you fill out the petition, but they will file it, schedule a hearing and get the other party served. Click this link to learn how to do it yourself http://www.sccourts.org/selfhelp/orderofprotectionmanual.pdf
  • Someone who commits physical violence can also be charged criminally under the Criminal Domestic Violence statute (CDV), found at http://www.scstatehouse.gov/code/t16c025.php.
  • The CDV statute applies to violence committed against household members, which include a spouse, former spouse, people who have a child in common, people who live together or used to live together whether gay or straight. If you are found guilty of CDV, you can be barred from owning or possessing a firearm. This office does not handle criminal matters.

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Cheryl A. Truesdale, Attorney at Law

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