One question I hear a great deal in my practice is “Can I get divorced?” This is a great question, and a lot of the confusion on this issue comes from television and the media. There is a lack of understanding about the grounds for divorce, and I would like to take the opportunity in this post to give some clarification on that issue. Each state has its own laws regarding what constitutes grounds for divorce, and in South Carolina there are five grounds: Adultery, physical cruelty, habitual drunkenness and drug abuse, desertion, and the no-fault grounds of living separate and apart for one year without cohabitation.
Adultery is a fairly well understood grounds for divorce. When someone comes into my office, whether they are the guilty party or the wronged spouse, they understand that adultery means someone has been cheated on. Traditionally, this is defined as sexual relations with someone outside the marriage, but it can also include other acts that many people might not think of. For instance, homosexual relationships can result in grounds for divorce. Sexual intimacy that does not include sexual intercourse can also create grounds for divorce. There is even some case law which indicates that artificial insemination without your spouse's consent could be grounds for an adultery divorce, although at this time this issue has not been conclusively decided by the Courts.
Physical cruelty is another grounds for divorce with which most people are somewhat familiar, although there tends to be more confusion about what actually constitutes physical cruelty. Actual physical violence is a requirement to receive a divorce based on physical cruelty. This means that verbally or emotionally abusive relationships won’t give rise to grounds for divorce. A single violent act could generate the grounds for divorce if it is accompanied by a history of violence or if the act was serious enough that it threatened the life of the victim spouse. It should also be noted that either spouse can be the victim of physical cruelty, although it is more often sought by the wife.
Habitual drunkenness and drug abuse becomes grounds for divorce when the spouse at fault abuses alcohol or drugs such that is causes a breakdown in the marriage. Another important requirement is that the abuse exists at or near the time of filing for divorce. The spouse at fault must have a habit of getting drunk, but not necessarily continual drunkenness. Drunkenness brought on by the habitual use of narcotic drugs will also give rise to grounds for divorce.
Desertion is probably the least understood grounds for divorce in South Carolina. It results from one party ceasing to live with their spouse for one year without the intention of coming back, without the consent of their spouse, and without justification for their absence. The lack of cohabitation requires more than a lack of physical intimacy, so the at-fault party must have actually moved out in order to start the clock on the separation. Desertion has become nearly indistinguishable from the no-fault grounds discussed below, and therefore is used as grounds in less than one half of one percent of divorces granted in this State. It can, however, be a useful tool in assigning blame to gain a negotiating advantage.
Living separate and apart for one year without cohabitation is the no-fault grounds for divorce in our State. Both parties must be aware of the separation in order for a divorce on these grounds to be granted. Additionally, the separation can’t be due to commitment to a state mental health facility or military deployment. If you were to separate prior to the deployment, the clock can continue to run. I find that many people are familiar with this type of divorce as a result of knowing someone who has already gone through a divorce on these grounds.
Hopefully, this has been a helpful, if brief, explanation of what can give rise to grounds for divorce in South Carolina. If you have questions about how this relates to your situation, please call me at (803) 574-9555 or send me a message by filling out the form here, and I will be glad to set up a consultation and discuss your legal issues.
I am an attorney in private practice
The Law Office of
David J. McWilliam
David J. McWilliam, Attorney at Law provides legal services to residents in York County, Lancaster County, Chester County,
and throughout the state of South Carolina.
The Law Office of
David J. McWilliam is located in the Gold Hill Commerce Park at the corner of Pleasant Road
and Highway 460 in
Fort Mill, SC.
Copyright 2014 David J. McWilliam, Attorney at Law. All rights reserved.