There are five grounds for divorce in South Carolina: adultery, habitual drunkenness or drug abuse, physical cruelty, desertion, and separation for more than one year. It is necessary to prove one or more grounds for divorce in open court before a person can be awarded a divorce. This may occur in an uncontested matter by testimony of one of the parties which is not contested by the other party or by a third party if the ground is adultery. A married couple cannot simply agree to get a divorce upon grounds that do not exist.
If no such grounds exist, the parties may be able to file an action for Separate Maintenance and Support which will resolve all of the issues arising out of the breakup of the marriage except for the issue of divorce itself. Many states call these actions legal separations, but that is not what they are called in South Carolina. Once the issues are resolved in the action for Separate Maintenance and Support, whether by way of an agreement between the parties, or by a judge’s decision, those issues will be final and will not be re-litigated in subsequent action for divorce. Once the parties have been separated for a year, either could then file an action for divorce, based upon living separate and apart for a period of more than one year.
The underlying facts for a ground of divorce may or may not be relevant to some of the issues of the divorce, including child custody, alimony, equitable distribution of property, attorney’s fees, and other collateral issues.
Adultery is defined as a married person having sexual intercourse subsequent to marriage with a person other than is or her spouse. Adultery is a statutory bar to the adulterous spouse receiving alimony. The courts of this state have also ruled acts of oral sex and homosexual activity to constitute adultery and it is possible that the courts could expand the definition of adultery to include other sexual acts.
Physical cruelty is defined as either (1) a single act of physical harm which causes grievous bodily injury and places a person in fear of life and limb, or (2) repeated acts of physical violence which have caused a person to become in fear of life and limb. Verbal abuse and “mental cruelty” are not acts of physical cruelty which would constitute a ground for divorce.
Habitual drunkenness is the fixed habit of using alcohol or drugs to excess which has resulted in marital discourse and has led to the break-up of the marriage. Therefore, the habitual drunkenness must be in existence at or about the time of separation. The definition of drugs includes prescription drugs as well as illegal drugs. The best test for habitual drunkenness is whether or not drinking and/or drug usage caused problems in the marriage and ultimately led to its downfall.
Once year separation is a not fault ground for divorce. All that must be proven is that the parties have not lived together and have not had sexual relations during the period of separation for a period in excess of one continuous year. The one year separation “no fault” ground has essentially nullified the fault based ground of desertion.