What are the Types of Divorce in SC?

What are the Types of Divorce in SC?

There are five types of divorce in South Carolina – you can only get a divorce if you fall into one of those five categories. 

Each state has its own grounds for divorce – some allow no fault divorces based on irreconcilable differences, while others do not. Some states don’t allow fault-based divorces at all. 

South Carolina’s five grounds for divorce include a no-fault divorce based on one-year separation and four fault grounds for divorce. Below, we will discuss each of the five types of divorce in SC and what type of proof each requires. 

Types of Divorce in South Carolina: 

There are five types of divorce, or five grounds for divorce, in South Carolina, including:

  • No fault divorce based on one year separation,
  • Adultery,
  • Physical cruelty,
  • Habitual drunkenness, and
  • Desertion. 

Let’s take a look at each of these, starting with no fault divorces. 

No-Fault Divorce Based on One Year Separation

A no fault divorce means that the breakup is mutual, or at least no one is contesting the divorce. 

SC Code Section 20-3-10(5) says that either spouse can ask for a divorce “when the husband and wife have lived separate and apart without cohabitation for a period of one year.” 

No one has to be at fault, and the parties don’t have to prove anything except they lived separate and apart. What does that mean? 

The parties must remain separated – they can’t live under the same roof and they cannot reconcile during the one-year period. If the parties attempt to reconcile and then decide it’s still not going to work, the one-year clock starts over. 

Does a No-Fault Divorce Mean We Agree on Everything? 

Not necessarily – although it is best to reach an agreement before your final divorce hearing as to child custody, child support, alimony, and division of property, there are cases where those matters are disputed even though the divorce is based on one-year’s separation. 

The grounds for divorce may be mutually agreed upon – one year’s separation – but the details will still have to be worked out, either in negotiations, mediation, or at trial. 

Fault Based Divorce in South Carolina:

There are four types of divorce in South Carolina based on fault grounds, which are adultery, physical cruelty, habitual drunkenness, and desertion. 

Why blame the other spouse and file for a fault-based divorce? 

Fault in the circumstances that led to divorce, or marital misconduct, can have a significant impact on the final divorce decree, including who gets custody of the children, whether one spouse must pay alimony, and the division of marital assets. 

If your spouse is abusive and/or your children are in danger at your spouse’s home, it may be critical that 1) you get full custody of the children and 2) visitation with your spouse be limited or supervised. 

If your spouse has committed adultery, they are not entitled to alimony. Adultery, physical violence, habitual drunkenness, or other marital misconduct are also factors the court will consider when dividing marital assets. 

Adultery

Adultery is when one spouse cheats on the other, and it refers to sexual misconduct. It doesn’t matter if it is an ongoing affair or a one-night stand, but, if you “condone the adultery” by reconciling with your spouse, it is no longer a ground for divorce. 

How do you prove adultery? 

  • Witness testimony, including your private investigator,
  • Photos, 
  • Video, or
  • Any other evidence that tends to prove inclination and opportunity to commit adultery. 

Often, our clients use a private investigator to collect the evidence that they need. You don’t have to get photos or video of your spouse committing the act – proof of inclination (holding hands, spending an abnormal amount of time together) and opportunity (walking into a motel room or home together) are usually enough. 

In some cases, it is critical that you prove the adultery because 1) adultery is a complete bar to alimony and 2) marital misconduct is a factor that the court may consider when deciding child custody and division of the marital assets. 

Physical Cruelty

Physical cruelty is another type of divorce in South Carolina. It means physical abuse – pushing, shoving, hitting, or other conduct which creates a substantial risk of death or serious injury to you. 

How do you prove physical cruelty? 

  • If your spouse has been charged with domestic violence or if you were forced to seek a protective order against them, 
  • Photos or video of injuries, 
  • Medical testimony, or
  • Testimony of family members or friends who either witnessed the abuse or witnessed your injuries. 

If your spouse was convicted of domestic violence or violating a restraining order, they cannot deny the criminal conviction because the standard of proof in criminal court (beyond a reasonable doubt) is higher than the standard of proof in the civil or family courts. 

On the other hand, if they had a domestic violence charge dismissed, that doesn’t prevent you from proving to the family court that the abuse happened – in the family court, the standard of proof is lower than in the criminal courts; therefore, you can still claim physical cruelty as a ground for divorce. 

Habitual Drunkenness

Habitual drunkenness doesn’t just refer to alcohol – it could mean your spouse’s abuse of alcohol or any type of drug. 

It also doesn’t mean your spouse has been diagnosed as an alcoholic or drug addict – you will need to prove that they use alcohol or drugs on a regular basis (this could mean every day, or it could mean twice a week), and their use of alcohol or drugs caused the breakdown of the marriage. 

How do you prove habitual drunkenness? 

Assuming your former spouse doesn’t admit to their problem and the impact it had on your marriage, you can prove your case through:

  • Witness testimony – friend or relatives who have observed your former spouse’s alcohol or drug use,
  • Testimony from your private investigator,
  • Photos or videos, 
  • Evidence that your former spouse was admitted for treatment for drug or alcohol abuse, or
  • Arrests or convictions for alcohol or drug-related offenses. 

Desertion 

The final type of divorce in South Carolina is desertion, or abandonment. 

If your former spouse just disappeared with no explanation, you did not agree to their desertion, and you received no support from your former spouse during the one-year period, you are entitled to a divorce on the ground of desertion. 

As with the other types of divorce, desertion can be proven through witness testimony, including the testimony of a private investigator who has made reasonable attempts to locate your former spouse. 

Questions About Types of Divorce in South Carolina? 

If you are considering separation or divorce, call an experienced South Carolina divorce attorney now who can answer your questions and help to protect your rights during the process.  

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

Ready To Speak With An Attorney?

Let’s discuss the details of your case and see if we can help.

Top 15 Questions About Divorce in SC

Top 15 Questions About Divorce in SC

Questions about divorce in South Carolina?

Whether you are considering separation, or you have been served with divorce papers, you probably have a lot of questions and you may be feeling overwhelmed. Your first step is to consult with an experienced South Carolina divorce attorney who can answer your questions and help you to decide what your next steps should be. 

In the meantime, we have compiled answers to some of the most common questions about divorce that we hear from our clients, including:

  • How long the process takes,
  • What adultery is,
  • Whether you can get alimony in South Carolina, and
  • How marital property is divided in a South Carolina divorce.

Common Questions & Answers on Divorce

1. How long does it take to get a divorce in South Carolina?

There is no simple answer to how long it takes to get a divorce. The answer is… it depends.

Is it a no-fault divorce based on one-year separation? At a minimum, it will take one year from the date you and your spouse separated before your divorce can be finalized. Remember, once you file for divorce, it can take months for a final hearing to be scheduled and for your divorce to be final. 

Is it a “simple” divorce with no contested issues, or will the court need to decide matters like child custody, child support, alimony, and division of marital property? 

Fault-based divorces can be decided sooner than one year after your separation but contested issues may delay the date of your final hearing as both sides engage in the discovery process, litigate disputes, and participate in court-ordered mediation.

2. How long do you have to be separated before divorce in South Carolina?

If you are seeking a divorce based on one-year’s continuous separation, you must be separated for at least a year before your divorce can be finalized. During that year, you cannot reconcile, or the clock will start over.

3. How much does a divorce cost in South Carolina?

There is no set price for a divorce in South Carolina. The cost of your divorce will depend on the experience of the attorney that you retain and the complexity of the issues involved in your divorce case. 

For example, if you have no children, you have no assets, you are not seeking alimony, and you intend to divorce based on one-year’s separation with the consent of your spouse, the total cost of your divorce will be significantly less than it would be if you and your spouse must work out the division of a family business and substantial assets, if there are children and custody is disputed, or if you are seeking a divorce based on fault grounds like adultery.

4. What is the fastest way to get a divorce in South Carolina?

Like every other question in the law, it depends.

The fastest way to get a divorce in South Carolina is to file for divorce based on fault grounds (adultery, physical cruelty, habitual drunkenness, or abandonment) in a situation where your spouse consents, does not contest the grounds for divorce, and there are no other contested issues. 

If your spouse does contest the grounds for divorce, however, the divorce process will take longer because you need to complete the discovery process, litigate any pre-trial legal issues, and attend a court-ordered mediation before a final hearing/trial takes place. 

In some cases, the fastest way to a final divorce may be to seek a divorce based on one-year separation and to reach an agreement on all issues before your final divorce hearing.

5. How do you prove adultery in South Carolina?

Although pictures or video of your spouse engaging in the act would be ideal, that rarely happens. Your investigator or other witnesses only need to establish that your spouse had 1) the inclination and 2) the opportunity to commit adultery. 

For example, if your spouse was holding hands with someone else or kissed them in public, and then disappeared into a hotel room with them for an extended period of time, that would be sufficient evidence to prove adultery.

6. Can you date while separated in South Carolina?

No one is going to tell you that you absolutely can’t date while separated, but it could affect your divorce.

Dating = adultery and possibly “marital misconduct” that can affect your case in many ways. 

For example, if you commit marital misconduct before 1) you have signed a written settlement agreement or 2) the Family Court has entered a permanent order for separate support and maintenance or a permanent order approving your agreement, you may be barred from receiving alimony and the court can take your “marital misconduct” into consideration when dividing marital assets. 

Even after a settlement agreement has been signed, dating will likely affect child custody in situations where the court considers it “marital misconduct” or when your new love interest negatively impacts the child.

7. Can you be denied a divorce?

If you ask for a divorce on fault grounds only, and you do not prove the fault grounds, the court will deny your divorce. 

If you ask for a divorce based on one-year’s continuous separation, and the court finds that you have not been living separate and apart for the full year, the court will deny your divorce.

8. Does it matter who files for divorce first in South Carolina?

It matters only from a psychological perspective – if you file first, you have the first opportunity to tell the story of your case and to provide a framework through which the court will see the facts of your case. 

Apart from that, you can include all of your claims in your Answer and Counterclaims, and you do not lose any rights by not filing first.

9. Who gets the house in a divorce in South Carolina?

There is no set rule as to who keeps the marital home in a divorce, but, if the parties cannot reach an agreement, the court will:

  • Identify what property is part of the “marital estate” (the marital home will usually be considered part of the marital estate),
  • Value both marital and non-marital property, and
  • Divide the property equitably, taking into consideration the statutory factors for division of marital property.

For example, if one spouse has custody of the children and needs the marital home to continue to provide for them, the court will take this into consideration when dividing the marital property.

10. How do I divorce my spouse and keep everything?

This is not likely to happen, but the court will follow the rules identified above when dividing the marital assets. 

One factor that the court must consider is marital misconduct – for example, if you prove adultery, habitual drunkenness, physical cruelty, or abandonment as a ground for divorce, you are more likely to keep a greater portion of the marital estate.

11. Can I divorce my spouse without them knowing?

It’s not likely. 

You must serve the divorce papers on your spouse and give them sufficient notice and opportunity to reply. Unless your spouse has disappeared and it is impossible to locate them, any divorce that is granted could be undone if your spouse did not receive proper notice.

12. Can you get a divorce if your spouse won’t sign?

Yes. 

Your spouse doesn’t have to sign anything for you to get a divorce on fault grounds or after a one-year separation, but they must have notice and an opportunity to respond to your divorce action.

13. How do I get a divorce in South Carolina without waiting a year?

If you can prove a fault-ground for divorce like adultery, habitual drunkenness, physical cruelty, or abandonment, you do not need to wait for the one-year continuous separation.

14. Is South Carolina an alimony state?

You can receive alimony when appropriate in South Carolina in an Order for Separate Support and Maintenance or in your final divorce decree.

15. Is sexting considered adultery in South Carolina?

“Sexting” is not adultery, but it can be evidence of adultery – you need only prove 1) inclination (sexting would certainly imply inclination) and 2) opportunity. 

Sexting alone, however, without further evidence of adultery, could still be considered “marital misconduct” that may affect child custody, alimony, or division of assets.

Questions About Divorce in South Carolina?

If you are considering separation or divorce, call an experienced South Carolina divorce attorney now who can answer your questions and help to protect your rights during the process.  

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

Ready To Speak With An Attorney?

Let’s discuss the details of your case and see if we can help.