"Isn't it Hard to Get a Divorce in South Carolina?"

Not anymore. A divorce used to be very difficult to obtain in South Carolina. Up until 1949, divorce was illegal in this state! From 1949 until 1969, a divorce was only possible if you could prove that your spouse was guilty of adultery, desertion, physical cruelty, or habitual drunkenness. In 1969, no fault divorce was allowed for the first time in South Carolina, but you and your spouse had to live "separate and apart" for three years. In 1979, no fault divorce was reduced to one year of continuous separation.


"Who Decides If I Can Get Divorced?"

The Family Court Judge is the only person who can grant you a divorce. This power to grant a divorce is called jurisdiction. Before you can go in front of a Family Court Judge and ask for a divorce you must be a resident of South Carolina. If you live in South Carolina, but your spouse does not, you must be a resident of South Carolina for one year before you can be divorced. However, if your spouse has lived in South Carolina for one year, you can be divorced in South Carolina, even if you live in another state. If you and your spouse have both been living in South Carolina for at least three months, you can be divorced in this state.


"Where Do I Have to Go for a Divorce?"

There is one Family Court in every county in South Carolina. It is possible that you could choose from three different counties in which you could file for divorce. A divorce case must be filed in either:  (1) the county where your spouse lives, (2) the county where you live (if your spouse lives out-of-state), or (3) the county where you and your spouse last lived together.  Click here for information about the specific Family Court that you may have to visit.


"What Do I have to Prove to Get Divorced?"

The facts that you have to prove to get divorced are called grounds. In South Carolina there are five grounds for divorce:

(1) adultery,

(2) physical cruelty,

(3) habitual drunkenness,

(4) desertion, and

(5) living separate and apart without cohabitation for a period of one year.

Unlike some other states, South Carolina does not recognize "mental cruelty" or "irreconcilable differences" as grounds for divorce. The first four grounds (adultery, physical cruelty, habitual drunkenness and desertion) are known as fault grounds for divorce. The last ground (living separate and apart without cohabitation for a period of one year) is the only no-fault ground for divorce.


"Does it Matter Who is at Fault?"

Sometimes it does matter who is at fault for the breakup of the marriage. When the Family Court is deciding certain issues (such as who will pay attorney’s fees, or who will get what property), the judge is allowed to penalize the "at-fault" party. There are also many other factors that must go into the Judge’s final decision, so it is impossible to make a blanket statement regarding how a Judge may rule when one party is at fault.

An "at-fault-divorce" can be a speedy divorce (sometimes). A divorce may be granted as soon as three months after you file in Family Court, if the divorce is granted for adultery, physical cruelty or habitual drunkenness. However, most of the time, the Family Court is so backed up that it is impossible to have a final hearing scheduled in three months. Also, if there are any contested issues, such as custody of children or division of property, then it will be next to impossible to obtain a divorce in three months.


"Can I Get Divorced if I am Still Living with My Spouse?"

The Family Court may hear an initial hearing in a divorce case based on adultery, habitual drunkenness, or physical cruelty, even if you and your spouse are still living in the same house. In such cases, the Judge will decide which of you will have to leave the house. Many times the Judge will tell one of you to get out by 5:00 p.m. that evening! You cannot file for a no fault divorce if you are still living with your spouse.


"Can I Get a Divorce on Adultery?"

The Law defines "adultery" as "the illicit intercourse between two persons, one of whom, at least, is married." In South Carolina, you can be divorced if your spouse has committed adultery. It can be difficult to prove adultery if your spouse will not admit to it. "Illicit intercourse" does not require the normal act of sexual intercourse between a man and a woman. Proof of "sexual intimacy" is enough to support a finding of adultery. If you can prove that your spouse had an inclination to commit adultery and had an opportunity to commit adultery, the Judge can grant a divorce based on the grounds of adultery.

Most adultery cases need to be proven by circumstantial evidence, because very few cases involve someone being caught in the act. In an actual court case, the judge said, "Suffice it to say that where, a married woman with a history of having committed adultery, spends the night, undressed, in the same bed with a man, with whom it appears she is romantically involved and to whom she is not married, her actions warrant the finding that she has committed adultery."

Circumstantial evidence can include things such as love letters, romantic cards, hand-holding, hugging, kissing, or any other romantic demonstrations or actions between the two. Because adultery, by its very nature, is an activity which takes place in private, it may be (and usually is) proved by circumstantial evidence.

A divorce can be granted in South Carolina on the ground of adultery where one spouse is involved in a homosexual relationship.

"Can I Get a Divorce on Physical Cruelty?"

Some sort of physical violence is required to get a divorce upon the ground of physical cruelty. The law defines physical cruelty as "actual personal violence, or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe." It is difficult (even for a Judge) to apply this definition to a particular set of facts. Every case is different, and two different Judges may rule two different ways when presented with the same particular set of facts. In an actual Family Court case, a woman who was slapped twice during the marriage did not get a divorce based on physical cruelty. Usually the Judge is looking for continued acts of personal violence producing physical pain or bodily injury and a fear of future danger before a divorce is granted on the grounds of physical cruelty. Sometimes a single act of violence is enough to get a divorce based on physical cruelty. In another case, the Judge granted the husband a divorce on the grounds of physical cruelty because his wife shot him once in the chest at point blank range. Another Judge ruled that a nagging wife is not physical cruelty, even if her nagging prevents sleep!


"What is Habitual Drunkenness?"

A divorce can be granted if your spouse is an Habitual Drunk or an Habitual User of Narcotic Drugs. In order to prove habitual drunkenness, there must be a showing that the abuse of alcohol (or drugs) caused the breakdown of the marriage and that the abuse existed at or near the time of filing for divorce. There is no clear definition of "habitual drunkenness." However, drinking a fifth of liquor every day for several years will usually be considered "habitual drunkenness. If your spouse used to drink a lot, but has been clean and sober for some time, you can no longer ask for a divorce on the grounds of habitual drunkenness.


"Can I Get My Spouse for Desertion?"

Even though Desertion is still on the books in South Carolina, it is rarely used as a ground for divorce. A no fault divorce can be proved more easily than desertion. If your spouse "deserts" the marriage, he or she must "stay deserted" for one year before you can ask for a divorce. You must also prove that you wanted him or her to come back, and you did nothing to prevent his or her return to the marriage. A no fault divorce only requires that you and your spouse are separated for one year.


"What is a No Fault Divorce?"

In order to obtain a "No Fault Divorce" you have to show the Family Court Judge that you and your spouse have been "living separate and apart without cohabitation for a period of one year."

Both parties must be aware of the fact of the one year separation before a no fault divorce can be granted. If your spouse is committed in a mental hospital for one year, you cannot get a not fault divorce. You cannot get a no fault divorce if your spouse is away from the home because he or she is serving in the military. You and your spouse cannot continue to maintain a single household under one roof and get a no fault divorce.


"What Can I Do to Stop my Divorce?"

Everybody has seen an old black and white movie where the wife says to the husband, "I’ll never give you a divorce." However, those days are over. You do not have to get your spouse to sign for the divorce. You do not need your spouse’s permission to get a divorce. There are a few situations that will delay the inevitable, but, sooner or later, a divorce will be granted if one spouse wants it.

It is illegal to make up grounds for a divorce. This is called collusion. For example, you and your spouse cannot tell the Judge that you have been separated for one year if you have only been separated for one month. If the Family Court finds out that you lied to get a divorce, not only will you still be married, but you could also be looking at a perjury charge!

A fault-based divorce (such as adultery) will not be granted if both spouses are committing adultery. This is called recrimination.

If you know that your spouse is a drunk, but this behavior does not bother you and does not cause the break-up of the marriage, then condoning (or forgiving) such behavior will cause the Judge to not grant the divorce.

Reconciliation will also prevent a divorce. If you know that your spouse has committed adultery, but the both of you resume living together, the Judge will not grant the divorce.


"What Happens After I am Divorced?"

When you are divorced, you are no longer married. (Duh?!)  What his means, is that you no longer have the legal responsibilities and duties of marriage. Unless you have been ordered to pay alimony, you are no longer financially responsible for your ex-spouse. For example, when you are married, you are legally responsible for the hospital bills of your spouse. Once you are divorced, you cannot be asked to pay any bill that your ex-spouse may run-up (unless you are ordered to do so in the divorce decree).

You can change your name when you get divorced. You may resume using your maiden name, or any other name you choose. Here’s a tip: if you want to change your name, do it as part of the divorce. Even though you can change your name after you are divorced (by yourself, without a lawyer), you will still have to pay over $200.00 for various filing fees and reports. There is no extra cost to insert a name change into a divorce decree.

Divorced spouses lose their right to inherit from their spouse. However, if your ex-spouse names you as a beneficiary in a will that he or she signed after the divorce, you would inherit whatever was given to you in the will.

This Webpage contains only a brief overview of the topic of Divorce in South Carolina. Only a licensed, qualified attorney who practices in the Family Court can adequately address your individual needs and questions. I hope that this information has been helpful. I look forward to hearing from you!