DIVORCE, CUSTODY & FAMILY LAW

Summary

No-Fault Divorce. The most common ground for divorce in South Carolina is the no-fault ground. To qualify, you and your spouse must live separate and apart — meaning not in the same house — for one continuous year. Sleeping in separate bedrooms does not count. You do not need to file anything with the court to start the one-year clock; it begins automatically on the last night you sleep under the same roof.

Even though you don't have to file anything, many people choose to bring an action for separate support and maintenance during that year. When finances are intermingled, there are children, or one spouse is the primary breadwinner, a separation action can provide immediate relief: temporary custody, child support, alimony, the right to stay in the home, and protection from the other spouse. The final agreement — who gets the house, how debts are divided, retirement, alimony — can all be worked out during the waiting period so that when the year passes, there is nothing left to litigate.

Adultery. Adultery is the most commonly used fault-based ground. You do not have to wait a year when adultery is alleged. The standard of proof requires showing "opportunity and inclination" — that your spouse was romantically interested in another person and had the physical opportunity to act on it. The most common method of proof is through a private investigator. Written admissions (text messages or emails) can also be used. One important defense to be aware of is condonation: if you take your spouse back after discovering the adultery and allow years to pass trying to work things out, the other side may argue that the adultery has been forgiven.

Physical Cruelty. Physical cruelty is proven through police reports, photographs of injuries, records of criminal convictions, and witness testimony. If you are dealing with physical cruelty, your attorney will very likely seek an Order of Protection or, at minimum, a no-contact order from the Family Court. Violations of a no-contact order can result in contempt of court and potential jail time.

Habitual Intoxication. This ground covers habitual use of alcohol, narcotics, or other drugs. You must demonstrate that the intoxication was the cause of the breakdown of the marriage. Evidence includes police reports, employment records showing job loss due to substance abuse, witness testimony, and medical records.

Abandonment. This ground — where the other spouse has been gone for more than a year — has become largely obsolete because it overlaps substantially with the no-fault separation requirement. It is rarely used unless the facts of the abandonment (for example, a spouse abruptly leaving the family) are relevant to how the court divides the marital estate.

Why Pursue a Fault-Based Divorce? There are three main reasons: the need for a judicial finding that acknowledges what happened; not having to wait the full year to finalize the divorce; and the potential impact on how the court divides the marital estate, since fault is a factor in equitable distribution. The downside is cost — proving fault requires subpoenas, evidence development, and additional attorney time, and there is no guarantee the court will order the other side to pay your legal fees.