What is a fault divorce in South Carolina?
A fault divorce is a divorce where the person asking for the divorce claims that their spouse caused the divorce.
Many people believe that divorce rates are growing and have been out of control since the mid-20th century. While divorces have increased over the years, this is because of no-fault divorces. When most people divorce in the United States, they get a “no-fault” divorce. In a no-fault divorce, the spouses tell the court that they should be divorced because they are no longer compatible.
No-fault divorces are a recent development in the law. Up until the 1970s, you needed a reason to divorce a spouse. This changed dramatically when states began to allow no-fault divorces. This made it easier for spouses to leave a marriage without the stain of liability.
For example, if a wife tried to leave her husband without a divorce, he could then sue her for a fault divorce because she “deserted” him. Because of no-fault divorces, it is easier to leave a failing marriage without putting oneself at risk.
No-fault divorces in South Carolina require that the spouses be separated for one year before the court will grant the divorce. Fault divorces in South Carolina do not have this one-year requirement, and feasibly can be granted much sooner than one year.
Fault divorces still exist in some states. To get a fault divorce, you must allege that your spouse caused the breakdown of the marriage. The grounds for a fault divorce differ from state to state. We discuss the fault grounds for divorce in South Carolina below.
Does South Carolina have Fault Divorces?
Yes! South Carolina has both fault and no-fault divorces. South Carolina has four different grounds that a person can ask for a fault divorce:
- Desertion for more than one year;
- Physical cruelty; and
- Habitual Drunkenness or drug use
- Fault divorces in South Carolina may prevent your spouse from seeking alimony. The thinking behind this is that a spouse that caused the marriage to fail should not be further rewarded. If one spouse alleges one of the fault grounds for divorce, that spouse must prove it to the court with evidence. Sometimes, proving these grounds can be difficult and may require some creative thinking.
To prove adultery in a fault divorce, you must show that your spouse had the opportunity to commit adultery. You also have to show that your spouse was inclined to commit adultery. You, as the innocent spouse, must support your claim that your spouse committed adultery by providing enough evidence to the court that shows that your spouse committed adultery. This can be done by video or photographic evidence of the cheating spouse with the paramour, text messages about the affair, or social media activity.
To prove desertion, you must show that your spouse deserted you for at least one year. You must also prove that your spouse never intended to return to the marital home. You must also show that there was no reasonable cause for your spouse to desert you.
To obtain a no-fault divorce, you must be separated (living at a separate address) from your spouse for at least one year. Some people may confuse the one-year separation requirement for no-fault divorces and the grounds for desertion.
If you leave the marital home to fulfill that one year separation requirement, can you be inadvertently found at fault for ending the marriage? No, but it is important to talk to your attorney! The a no-fault divorce may be filed while you are still living together with your spouse. You must live apart from each other for one year before the judge will grant the divorce. Even if you moved out for a year to meet the no-fault requirement, the court likely will not find that you deserted your spouse if you left to obtain a no-fault divorce.
To prove that your spouse was physically cruel to you, you must prove that there was at least one incident of physical violation by your spouse against you. Unfortunately, verbal abuse and emotional cruelty are not enough to satisfy this requirement in South Carolina. The cruelty must be physical. You can prove this through:
- Police reports;
- Orders of Protection filed against your spouse by you;
- Text messages apologizing for abusing you or messages describing the abuse;
- Eye-witness testimony;
- Photographs or videos showing the abuse or the results afterward;
- Medical records; or
Your own notes if you write them down immediately after the altercation occurs.
Habitual Drunkenness or Drug Use:
You must show that your spouse habitually uses alcohol or other intoxicating substances. This may include marijuana, opioids, heroin, or any other illegal drug. You must prove that your spouse has a habit of using these drugs and that it interferes with your marriage or parenting your children. This can be proven by bank records or receipts that show your spouse regularly visits bars or liquor stores. Arrest records for possession of illegal drugs may also help you prove your case.
Do I have to choose between filing for a fault divorce and a no-fault divorce?
No, you don’t! In South Carolina, you can allege both a fault and no-fault divorce in the complaint. However, if your divorce goes to trial, you must pick which divorce you want. Fault divorces require you to prove additional facts that would entitle you a fault divorce. A no-fault divorce only requires that you have lived in South Carolina long enough to seek a divorce in South Carolina, that your marriage was a valid marriage, and that you have satisfied the one-year separation requirement.
Does it matter if I allege grounds for a fault divorce?
It depends. Here are some thinks to think about when you make your decision.
Do you have a lot of property to divide in the divorce? South Carolina courts may take fault int account when dividing marital property. If your spouse did something terrible, the court may decide that you should get a larger, yet still fair, portion of the marital property that you otherwise would have.
Are you at fault, too? If you are filing for divorce because you spouse had an affair, that’s find. But if you also had your own affair, you can bet your spouse is going to bring this up at court. Unless your hands are clean, the no-fault option may be the best way to go.
Does your spouse have some other good defense? If your spouse had an affair years ago, or you knew about the affair but your marriage resumed as usual, your spouse can claim this defense. If your spouse committed some act that that hurt you, the judge will want to see that there has been little to no forgiveness for their sins. You need to be able to show the judge that you want the divorce because of your spouse’s harmful actions. Judges have little patience for the blame game, and don’t want you using your spouse’s actions as a convenient excuse for a fault divorce.
How does South Carolina differ from other states on fault divorces?
South Carolina is different in that it recognizes fault divorces.
All states now have some form of no-fault divorces. There are 17 states that are “true no-fault” divorce states, where the only option for divorce is on no-fault grounds. The remaining 33 states still have fault-based divorces.
Over the years, states wanted the courts to look less at whether a spouse was at fault for the marriage, and instead allow spouses to leave a damaged marriage Being able to marry is a fundamental right. Courts now recognize being able to leave a marriage is a fundamental right (as long as the court has jurisdiction, or power, to grant a divorce)
For the other states that recognize fault divorces, the grounds for fault divorces differ depending on the states. In some states, the court only looks at whether one spouse has failed to perform a “material marital obligation.” No, you can’t be at fault for a divorce for not doing the dishes. A marital obligation may be failing to be monogamous, or failing to support each other financially.
Other states will consider the conviction of a felony a fault ground for divorce. South Carolina’s four fault grounds are only valid in South Carolina. Other states will have different grounds with their own nuances.