What Happens in a Fault Divorce in South Carolina?
By Beverly Bird
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South Carolina is not a progressive state when it comes to divorce. Some states no longer recognize fault-based grounds at all. South Carolina’s legislation still recognizes fault, however, and judges will also consider it when deciding issues of alimony and property division. In some cases, it can even tip the scales when child custody is in dispute.
South Carolina’s four fault grounds include adultery, physical abuse, substance abuse and desertion. Technically, there is no ground for emotional abuse, but if a spouse lives in fear for her health and safety, it qualifies as physical abuse. Substance abuse includes both drug addiction and alcoholism. The desertion ground requires that the spouse who left the marriage remains away for a year or more. A divorce is only fault-based when the spouse filing alleges one of these grounds in her complaint.
Alleging fault in a South Carolina complaint for divorce does not automatically place the other spouse at fault. The filing spouse must then prove the marital misconduct to the court’s satisfaction. This can happen as early as a temporary hearing to establish orders for custody and support while the divorce is pending, particularly if the wronged spouse is asking the judge to order the other spouse out of the marital home. To prove adultery, the wronged spouse must substantiate that the other spouse had both the intention and the opportunity to stray. Physicians' reports and the testimony of witnesses can establish physical cruelty. Medical records, eyewitness testimony and police reports can substantiate a ground of habitual and consistent drug or alcohol use. A spouse can establish desertion by providing a lease, mortgage or utility bill for the other spouse at another residence, but she would also have to prove that he left against her will.
Effect on Financial Issues
Between 1976 and 2010, committing adultery prohibited a spouse from receiving alimony in South Carolina. In 2010, the legislature amended Section 20-3-130 of the state’s Code of Laws to allow adulterous spouses to receive alimony if the adulterous act didn't take place until a year or more after the filing of a divorce complaint. Prior to this change, even separated spouses in the middle of a divorce could be charged with adultery if they dated. Judges can deny alimony based on other fault grounds as well, if they determine that the fault ended the marriage. South Carolina also considers all marital misconduct when dividing property or when ordering a spouse to pay alimony.
Effect on Custody
When custody is an issue, certain fault grounds can affect a judge’s decision. Like all states, South Carolina bases custody on what is in the best interests of the child. Factors a judge will weigh when deciding custody include the fitness of the parent seeking custody. If the divorce complaint alleges that this parent has a habitual drug or alcohol problem, and if the accusing spouse has proved this, the court might consider that parent to be unfit. If a spouse subjected his children to evidence of his affair when he committed adultery, South Carolina judges will consider this as well. If actual domestic violence has occurred that led to a fault ground of physical cruelty, South Carolina’s Code of Laws mandates that a judge take this into consideration when deciding custody.
- Lawyers.com: Divorce in South Carolina (SC)
- Gregory S. Forman: Frequently Asked Questions
- Megan C. Hunt: South Carolina Divorce
- Gorski Law Office: Child Custody – Who Decides Who Gets the Kids?
- Melissa F. Brown: Frequently Asked Questions
- South Carolina Legislature: South Carolina General Assembly 118th Session, 2009-2010
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.