Divorce

What are the grounds for Divorce?

There are five grounds for divorce in South Carolina; adultery, habitual drunkenness or drug abuse, physical cruelty, desertion, and separation for a period more than one year. It is necessary to prove one or more grounds for divorce in open court before a person can be awarded a divorce. A married couple cannot simply agree to get a divorce upon grounds that do not exist.

What if I don’t have grounds for Divorce?

If no grounds for divorce exist, an action for Separate Maintenance and Support can be filed if the parties are not living together. Many people think of this as a “legal separation,” but in South Carolina it is called “separate maintenance and support.”

What is the difference between a Divorce and an action for Separate Maintenance and Support?

There is no substantive difference between an action for separate maintenance and support and a divorce, other than that at the end of an action for divorce, the parties are divorced. In an action for separate maintenance and support, the parties remain legally married despite the fact that they are living separate and apart. Both actions for divorce and separate maintenance and support resolve all issues arising out of the breakup of the marriage, to include the division of property and debt, custody and visitation, child support, alimony, attorney fees and any other issues which must be resolved. Once the issues are resolved in the action for Separate Maintenance and Support, whether by way of an agreement between the parties, or by a judge’s decision, those issues will be final and will not be re-litigated in a subsequent action for divorce. Once the parties have been separated for a year, either could then file an action for divorce, based upon having lived separate and apart for a period of one year.

What constitutes Adultery?

Adultery is defined as a married person having sexual intercourse subsequent to marriage with a person other than his or her spouse. Adultery is a statutory bar to the adulterous spouse receiving alimony. The courts of this state have also ruled that acts of oral sex and homosexual activity also constitute adultery and it is possible that the courts could expand the definition of adultery to include other sexual acts. In order to prove adultery, a party must prove that the adulterous spouse had both the opportunity and inclination to commit adultery.

What constitutes Physical Cruelty?

Physical cruelty is defined as either (1) a single act of physical harm which causes grievous bodily injury and places a person in fear of life and limb, or (2) repeated acts of physical violence which have caused a person to become in fear of life and limb. Verbal abuse and “mental cruelty” are not acts of physical cruelty and do not constitute a ground for divorce.

What constitutes Habitual Drunkenness or Drug Abuse?

Habitual drunkenness or drug abuse is the fixed habit of using alcohol or drugs to excess which has resulted in marital discourse and has lead to the break-up of the marriage. The act of habitual drunkenness must be in existence at or about the time of separation or commencement of the action for divorce. The definition of drugs includes prescription drugs as well as illegal drugs. The best test for habitual drunkenness is whether or not drinking and/or drug usage caused problems in the marriage and ultimately led to its downfall.

What constitutes Separation for a Period of One Year?

One year of continuous separation is a no fault ground for divorce. All that must be proven is that the parties have not lived together and have not had sexual relations during the period of separation for a period equal to or in excess of one continuous year. The year begins when the parties physically separate and begin living in two separate residences and has nothing to do with when an action is filed. The one year separation “no fault” ground has essentially nullified the fault based ground of desertion.
Phipps Family Law, P.A.

Hilton Head Island

(843) 689-6242

Newberry, SC

(803) 405-0009

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