South Carolina Divorce

If you live in the state of
South Carolina
and either are thinking about divorce or find yourself about to go through a divorce, there are a few things of which you need to be aware.

First and most importantly,
South Carolina
has a completely separate Family Court system dedicated solely to family law issues. The judges that hear cases involving divorce, custody, child support, alimony, property division or a host of other related family law issues hear only these cases and as a result are quite familiar with the issues that come before them. Understand that the judges apply the law and are not often, if ever, persuaded from their position by the sympathetic pleas of a party. The lesson to be taken away from this is that you want to make sure to avoid the mistake people frequently seem to make. They think they can handle their case on their own by simply convincing the judge they are deserving of special treatment. They are wrong. If you are going through a divorce, you need to have an attorney who knows the divorce laws of the State of
South Carolina
because the court does not vary from their application of the law. Be careful who you hire though. It is possible to hire an attorney that claims to be the “one stop shop” for all of your legal needs, but the divorce law has many nuances and you want an attorney who realized that. You want an attorney who not only knows the law, but how the law is applied in Court. Don’t represent yourself. It is a fool who represents himself in the family courts. Even if you happen to be a divorce attorney, you always want to make sure to have an attorney represent you. They know the law, they know the Courts and they do not have an emotional attachment to the case.

So what issues will you have to deal with in
South Carolina
during a divorce? There can be many, but the issues will generally fall into one or more of several categories. While there are an endless number of issues that may be addressed, most fall into several broad categories such as, custody of children, if any, support for a spouse or children, division of property, including debt, other issues such as restraining or other supplemental orders and, finally, the issue of divorce which is handled separate and apart from the other issues involved in the divorce.

In
South Carolina
, one of five events must occur to allow one party to obtain a divorce from the other spouse. The factors that must occur to allow a divorce are:

1. Separation for a period of one year without cohabitation.

2. Adultery.

3. Physical Cruelty.

4. Habitual drunkenness.

5. Desertion for a period of one year.

In
South Carolina
, for the divorce on the ground of one year continuous separation, there is no Court involvement required for the period of separation to begin. In other words, you do not need any court involvement for the start date of the separation to begin. The period of separation must be a minimum of 365 continuous days and there can be no reconciliation. This means that even if the parties are together for a single night, the period of separation could be placed in jeopardy. To prove the period of separation to the Court, the person seeking the divorce must bring a witness to Court to testify to the period of separation. A spouse cannot offer this testimony and the testimony must be live. This ground is typically thought of as the “no fault” divorce as the divorce can be granted without the need or requirement of any fault on the part of either party. As soon as the year of separation runs, the party seeking the divorce merely has to make sure that an action is filed seeking the divorce and then request a hearing before the Court. While some other states allow divorces to be granted without the need for a hearing,
South Carolina
requires a hearing where the party seeking the divorce must be present, without exception; however, the spouse who the divorce is being sought against, or the defendant in the action, does not need to be present. Such hearings, seeking only a divorce are largely procedural and rarely, once the hearing begins, take longer than 10 minutes, though the wait for the Court may be somewhat longer depending on the Court’s schedule for that particular day. In
South Carolina
there is no such thing as a legal separation. It is possible for all issues between parties to be resolved and put in a final order leaving only the issue of the divorce to be decided later, but the court does not grant legal separations.

Adultery will also allow a divorce to be granted. While people generally think of some sexual liaison when thinking of adultery, sex is not required for a divorce to be granted on the grounds of adultery. In
South Carolina
, a divorce can be granted on the grounds of adultery if an aggrieved party can show two things – inclination and opportunity. The inclination, or desire to engage in such wrongful conduct, and the opportunity to engage in the conduct both must occur to entitle a spouse to a divorce. The Courts in
South Carolina
have made it very clear that they will not create a list of sexual acts that constitute adultery and a list of those that don’t. Instead, if a person has the inclination and opportunity to engage in adulterous conduct, then the divorce can be granted. To prove this ground, testimony must be offered, generally through a private investigator, that one spouse was observed in a fashion that suggests inclination with someone other than their spouse and that the spouse and this person then placed themselves in a situation where there was an opportunity for adulterous conduct to occur. For example, if a spouse was observed having a dinner where they sat close to their date, perhaps engaged in some romantic conduct as they were leaving the restaurant and then returned to an apartment, or other location, where they stayed the night, even if they slept in separate rooms, adultery would have been deemed to have occurred in South Carolina thereby entitling the aggrieved spouse to a divorce on this ground. Remember, adultery can be proven even if no sexual conduct occurred. As well, the opportunity does not need to be overnight, only long enough for some conduct to occur. It is also possible to infer and prove inclination from the opportunity.

Physical cruelty will also allow for a divorce to be granted in
South Carolina
. This involves the repeated physical abuse of one spouse by the other involving physical contact, or the one time abuse by a spouse that was so extreme as to place the other in fear for their life. Generally testimony concerning this ground is offered via the aggrieved spouse, from medical professionals or law enforcement.

Habitual drunkenness involves the continued use of intoxicating substances, including legal and illegal drugs and alcohol that is so extreme it renders one spouse unable to perform their part in the marriage. However, this ground can be remedied is the spouse that was engaging in the conduct essentially kicks the habit.

Desertion involves one spouse leaving the marriage and being gone for a period of at least one consecutive year. As will be described below, as 90 days must pass before a divorce can be granted on any fault based ground, the ground of desertion is rarely used as it requires a total wait one year, three months. As a divorce can be granted on one year’s separation, it is quicker to proceed on the no fault ground.

Once any of the above grounds are established and can be proven, then an action must be filed with the Court alleging the fault and then served on the other party, putting the other party on notice of the intent to seek a divorce. The other party has the opportunity to answer the allegations in the action, or complaint as it is called. It is important to understand that simply because the ground for the divorce is alleged, it does not mean that it will be granted. The allegations must be proved to the Court and meet the required standard of proof. Once the action is filed and served on the other party, ninety (90) days must pass before a hearing on the matter can be held. Once this time has expired, then the aggrieved party can request a hearing to have a divorce granted. It is important to realize that
South Carolina
law prohibits one party to benefit from their marital wrong doing so that a spouse that commits adultery cannot be granted a divorce based upon their conduct.

While with the fault based divorce the time period for waiting on a divorce hearing is nine months less than that of the one year separation, it is still common for more than a year to pass during a fault based divorce as it sometimes takes considerably more time for the other issues in the marriage to be resolved. So simply because a person is entitled to a divorce by the establishment of some fault ground does not necessarily mean that the divorce will be granted after 90 days. In actuality, it is frequently much simpler to have a divorce granted on the no fault ground as the offer of proof is easier to accomplish.

In
South Carolina
, if a party is aggrieved by the marital fault of their spouse, it is possible that they could engage in conduct that would negate the ground. If a spouse had engaged in some marital misconduct, for instance, adultery, then confessed it to their spouse. If the spouse then allowed a full marital relationship to resume, even if forgiveness was not specifically given, the aggrieved spouse cannot then seek a divorce on that ground. In other words, if a spouse, with full knowledge of marital fault allows the other spouse back to the marriage, then they have no grounds for divorce and cannot use the marital misconduct against their spouse. As a result of this, it is very important that if marital misconduct is suspected, then an attorney should be consulted.

It is also important to realize that the issue of the divorce is but one issue in the entire divorce process. While it is an issue that is often easy to resolve, as in the case of marital fault, it is not often that a divorce is granted and then the other issues of the marriage addressed. All are usually addressed at once which means that divorces can sometimes take many months to resolve as property, support and child related issues are resolved.

There are specific laws in
South Carolina
related to the division of property.
South Carolina
uses a system of equitable distribution to divide all marital property, including debt. This will be the subject of a separate article focused solely on this point. However, the Courts use a long list of factors to determine each spouse’s interest in property and while marital misconduct can cause a spouse to lose interest in property, it will not require them to forego all interest in the total marital property.

Child custody will also be the subject of another article, but the standard that rules all issues relating to child custody is “the best interest of the child.” All matters relating to custody are filtered through this standard to determine the outcome.

In
South Carolina
, just because a divorce action is filed does not mean it will go to Court for trial. Cases may be settled between the parties, through negotiations through attorneys, mediation, arbitration or other process. It is only when all else fails that the parties go to Court for the case to be decided. In
South Carolina
, in the Family Courts, there are no juries. All matters in Family Court are decided solely and completely by a Family Court judge. While this is good considering that these judges only hear family law cases, allowing a judge to decide your case means one person has the task of deciding a large part of your future.

Family law can be a costly process. The more that can be settled between the parties the less it will cost, not only in dollars, but in benefit of the relationship between the two parties as they retain some degree of civility in years to come.

This article is not offered as, nor is it to be construed, as legal advice, nor does it create any relationship, attorney/client or other, between the author and the reader. To obtain any legal advice, consult an attorney licensed to practice law in your state.