The breakdown of a marriage can be a very difficult and emotionally trying time, even in the most “friendly” divorces or separations. People may decide it is time to move on from their relationship for a number of reasons including, but not limited to, one spouse’s marital fault, financial hardship, or simply growing apart. No matter the reason for the deterioration of your marriage, there is a light at the other end of the tunnel.
It is hard enough juggling all of life’s responsibilities without going through a divorce or separation. Having a family law attorney on your side can help relieve some of the burden from your shoulders as you navigate your case to final resolution. If you decide that it is time to move on, The Law Office of J. Wyatt Wimberly, LLC, would be glad to speak with you regarding the circumstances surrounding your marriage, and discuss moving forward with a “fault ground” divorce, “no-fault” divorce or an action for separate support and maintenance.
FAULT GROUND DIVORCE:
In South Carolina there are four (4) “fault” grounds for divorce as defined by S.C. Code Ann. §20-3-10 (1976) follows:
1) Adultery;
2) Desertion for a period of one year;
3) Physical Cruelty (emotional cruelty is NOT a fault ground in South Carolina);
4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness causes by the use of any narcotic drug
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An individual may choose to proceed with a fault ground divorce for a number of reasons. One consideration is the time it takes them to get the divorce. In the case of adultery, physical cruelty and habitual drunkenness, S.C. Code Ann. § 20-3-80 (1976) allows an individual to bring their divorce action as soon as the fault ground arises. Furthermore, one may be granted a divorce within three months after filing such an action (in the case of desertion, the divorce could be granted immediately after responsive pleadings are filed, or thirty days after the Defendant is served if he/she does not respond). Practically speaking, however, the divorce does not always get granted that quickly as all other issues arising out of the marriage other than the divorce itself (i.e. custody, visitation, property division, support, etc.) may not be agreed upon or have been properly litigated within a three month time frame. Another consideration is that our statutes provide that adultery is a complete bar to alimony being awarded to a spouse who commits the adultery before the earliest of either 1) a formal signing of a written property or marital settlement agreement or 2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. Although not complete bars to alimony, other fault grounds are still considered as to whether or not alimony or spousal support should be awarded.
Other reasons that family court litigants may choose to file for a divorce include, but are not limited to, simply creating a record that their spouse’s actions led to the breakdown of the marriage, to increase the likelihood of being awarded attorney’s fees on a temporary and/or final basis, or in a general attempt to appear favorable throughout the litigation process.
For each fault ground, there are certain elements that need to be shown in order to be granted the divorce on that ground. For adultery one must prove by the at-fault spouse had the 1) opportunity to commit adultery and 2) the inclination to commit adultery. Although highly case specific, for physical cruelty, one generally needs to show that one suffered “actual personal violence, or such a course of physical treatment as endangers life, limb, or health and renders cohabitation unsafe.” See. Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330 (1949). Habitual drunkenness is highly fact specific, but generally the habitual drunkenness must exist at or near the time of divorce (although the length of time before it is considered “habitual” is up for debate) and the courts will consider the amount of alcohol consumed, the effect of such consumption and the frequency with which it is consumed. Desertion as a fault ground is used increasingly little since the advent of our “no-fault” ground (more on that later), but generally one must show 1) cessation from cohabitation for one year, 2) intent of the absenting party not to resume cohabitation, 3) absence of consent, and 4) absence of justification for the cessation.
NO-FAULT DIVORCE:
In South Carolina we only have one “no-fault” ground for divorce as defined by S.C. Code Ann. §20-3-10 (1976) follows:
5) On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year
One may get a divorce on this ground if you intentionally live separate and apart from one another without any intervening cohabitation for a period of one year. You may not file for a divorce on this no-fault ground unless you have already satisfied the requirements mentioned above. Like desertion, a divorce may be had on the ground of “living separate and apart and without cohabitation for one year” immediately upon filing of responsive pleadings or thirty days after the Defendant is served if he or she does not respond.
Be it fault or no-fault, in order for a party to meet their burden for a divorce, they will normally need to have corroborating or circumstantial evidence that is clear and convincing. For example, with a “no-fault” divorce, a friend or family member could corroborate that you have been living separate and apart without intervening cohabitation for a period of one year. A private investigator could testify that your spouse has committed adultery with the requisite opportunity and inclination to do so. Police investigators or medical providers could corroborate that you have suffered physical abuse and the hand of your spouse. In some limited circumstances, a divorce may be granted on uncorroborated testimony if it is fully apparent that there is no collusion between spouses for purposes of obtaining the divorce.
SEPARATE SUPPORT AND MAINTENANCE:
If you do not have fault grounds (or if you have them and choose not to pursue them), or if you are separated but have not been separated long enough to get a divorce on one year’s continuous separation, you may bring an action for “separate support and maintenance.” This action can be used to seek spousal support or to resolve other issues incident to the marital relationship where no grounds for divorce exist or where they are not pursued by the filing party.
If you wish to speak with someone regarding your divorce or separation, please do not hesitate to contact the Law Office of J. Wyatt Wimberly, LLC today for a consultation to discuss the best option to help you move forward.