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53 Broad Street, Suite 205
Charleston, SC 29401
T: (843) 737-6040
F: (843) 737-6140   
 

 
Divorce

South Carolina is one of the few states in the country that does not allow for a married couple to obtain an immediate divorce in situations where there is no fault on the part of either party. In South Carolina, at least one spouse must have grounds in order to obtain a divorce.

There are 5 grounds for divorce in South Carolina, and before any of these five grounds can be brought, at least one of the parties must have been a resident of South Carolina for more than one year prior to instituting the action for divorce, or both spouses must have resided in South Carolina for at least three months. These five grounds are: Adultery, Physical Cruelty, Desertion for more than one year, Habitual Drunkenness or Habitual Use of Drugs, and Separation for a period of 1 year without cohabitation ("No Fault"). The grounds for divorce in South Carolina are briefly set forth below:

a. Adultery: Adultery is defined as the act of having sexual intercourse with someone other than one’s spouse. Adultery does not require the normal act of consummation between a man and a woman, however. South Carolina law does not specifically define the sex acts that constitute adultery, but the appellate courts have held that proof of “sexual intimacy” is enough to support a finding of adultery.

b. Desertion: Desertion may be a ground for a divorce in South Carolina if one party ceases to live with the other party for a period of one year, the deserting party has an intent not to resume cohabitation with the other party, the non-absent party has not consented to the cessation from cohabitation, and there is no justification of the cessation of cohabitation. Today, desertion is rarely used as the basis for granting a divorce because it is much easier to establish a no-fault ground based on one year separation.

c. Physical Cruelty: Some sort of physical violence is required to give rise to a cause of action for a divorce on the ground of physical cruelty. Mental or emotional abuse is not enough. Generally, a single act of physical cruelty does not ordinarily constitute a ground for divorce, unless it is so severe that it could endanger life or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future.

 

d. Habitual Drunkenness or Addiction to Narcotic Drugs: In order to prove habitual drunkenness, there must be a showing that the abuse of alcohol or narcotic drugs caused the breakdown of the marriage and that such abuse existed at or near the time of filing for divorce.

e. No-Fault Divorce - Requires Spouses to Live Separate for 1 Year: Neither spouse is any more or less entitled to a no-fault divorce than the other. At either party’s request, the court may grant a divorce to both parties on the ground of living separately for one full year, without any “cohabitation” interrupting the year apart. Cohabitation is defined as living together in the same house.

Unlike many states, there is not a provision in our laws for a "legal separation." In South Carolina, a couple is either married or not married. There is no other legal relationship. However, even if the grounds for a divorce do not exist, there is a step, which may be taken in court - An action for Separate Maintenance and Support, which resembles a legal separation. Generally, the same procedures followed in a divorce proceeding are followed in a Separate Maintenance and Support action. While, there are no clearly established grounds or reasons for a Separate Maintenance Order, one must generally show some cause why the marriage should be dissolved. Issues such as child custody, child support, and separate support and maintenance can be ruled upon at a Temporary Hearing in an action for Separate Support & Maintenance.

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