The decision to get a divorce isn’t always an easy one. Divorce is ranked among one of the most stressful events in your life. There are various grounds for divorce – legal reasons that you and your spouse need to end the marriage. South Carolina has both “fault” grounds and “no-fault” grounds for divorce. In layman’s terms, fault places blame for the end of the marriage on one spouse, while in a no-fault divorce, neither party is to blame. It is almost always easiest to achieve a no-fault divorce, but there are some circumstances where it is best to seek a divorce based on fault.
Grounds for Divorce
There are both fault and no-fault grounds for divorce. Fault grounds include:
- Drug or Alcohol Abuse;
- Physical Cruelty; and
No-fault divorce requires a one-year separation. Separation means that the couple no longer cohabitate as man and wife. Generally, couples must live apart in order for the separation time-clock to start running. Desertion, while still a fault grounds, is not often utilized because it has the same one-year waiting period as a no-fault divorce. Couples must be able to show proof of when the separation began.
Requirements for Divorce
In order to file for divorce in South Carolina, at least one of the spouses must have resided in the state for a period of at least a year before filing. When both parties live in the state, the residency requirement drops to a period of three months before filing. While couples must be separated for a period of one year for a no-fault divorce, there is no requirement for legal separation. Couples do not file any type of separation papers with the court. There is not a separation requirement for fault divorces.
When one spouse has committed adultery in the marriage, the other spouse may use it as a fault for divorce. The spouse would need to prove that adultery occurred by providing evidence to the court. Evidence can be circumstantial, showing that the spouse had the opportunity to commit adultery along with a romantic partiality. Sometimes a private investigator is useful in providing proof necessary to prove fault.
Physical cruelty is another term for abuse. When abuse has taken place, the victim does not need to show an actual injury. Instead, they must prove that the spouse’s conduct caused harm, or risk of harm or death. A restraining order may be in place indicating that abuse has likely occurred. The spouse may also have proof of injuries sustained during a domestic violence incident through medical reports.
Drug or Alcohol Abuse
Using drugs or alcohol occasionally is not enough to be considered a reason for fault in a divorce. The drug or alcohol use must be habitual and considered an abusive behavior. This negative behavior must have contributed to the final collapse of the marriage. Proof of drug or alcohol abuse may be done through the use of medical records, criminal records, or treatment for drug or alcohol abuse. Other forms of proof may include financial records showing the purchase of these substances, and data from the employer that shows abuse in the workplace.
In all divorce cases, the parties must provide corroboration that is independent of either party. This person is a third-party witness who will testify that the alleged fault has actually taken place. In some cases, a witness is not needed because evidence can be obtained through records. In a no-fault divorce case, the witness is used to prove that the couple was actually living apart for a period of one year before filing for divorce.
Why File a “Fault” Divorce
Since a no-fault divorce is easier to obtain, many people wonder if there are any advantages to filing a fault divorce. There may be a few benefits. A divorce where one spouse claims fault may allow for uneven distribution of assets. In a no-fault divorce, assets are distributed equitably between both parties. The person at fault in a divorce may lose some of their rights to these assets.
Another reason for using fault grounds is to be able to request different custody arrangements. Usually, both parents share custody of their minor children after a divorce. If one spouse is found to be abusive or is a habitual drug user, for example, the courts may use this information when deciding custody arrangements. It is important to note that there is not a one-year waiting period required for a divorce with fault. This means that the divorce process can begin immediately.
Defending Fault in Divorce
If you have been accused of fault in a divorce action it is advisable to consult attorney Robert Clark immediately. Robert Clark will review your case and assist you in defending the accusation. One possible defense to fault in a divorce is condonation. Condonation means that the other party was aware of the situation and forgave you for it. This is a common defense for adultery. When a behavior has been forgiven, it usually cannot be used later as grounds for divorce. If the behavior occurred years ago and is no longer happening, it usually cannot be used as a consideration for fault grounds in divorce.
Compassionate Divorce Attorney Robert Clark
Divorce is often complex and there are many various laws that determine how divorce must be handled in the legal system. Robert Clark is your advocate throughout the process and will guide you and protect your rights. Before you decide exactly how you should file a divorce it is essential to get input from attorney Robert Clark. Remember that every case is different and each marriage has a unique set of circumstances to be considered in divorce. The first important decision you must make as you begin a divorce is which grounds to use when filing.
When you are preparing to divorce, you need a strong, compassionate Greenville divorce attorney who cares about you and your family. Contact Greenville Family Law to schedule a consultation with Robert Clark today.