Grounds for Divorce in South Carolina: The 5 Legal Grounds

There are five grounds for divorce in South Carolina: (1) adultery, (2) habitual drunkenness, including habitual drunkenness caused by the use of a narcotic drug, (3) physical cruelty, (4) desertion for a period of one year, and (5) one year’s continuous separation (which is considered a “no-fault” ground for divorce). South Carolina Code Section 20-3-10 outlines these grounds.

In this article, we will explain each of these grounds, how to prove many of them, how long a divorce takes on each ground, and whether our courts recognize mental cruelty, emotional abuse, or child abuse as grounds for divorce in South Carolina. So which ground for divorce applies to your situation, and what will you need to prove?

Quick Answer: South Carolina has five grounds for divorce: adultery, habitual drunkenness (including habitual drunkenness caused by the use of a narcotic drug), physical cruelty, desertion for one year, and the no-fault ground of one year’s continuous separation. A divorce on the fault-based grounds of adultery, habitual drunkenness, or physical cruelty cannot be granted until three months after filing, and you must prove the fault. Emotional abuse and mental cruelty are not separate grounds for divorce.

What Are the Five Grounds for Divorce in South Carolina?

South Carolina recognizes four fault-based grounds for divorce and one no-fault ground. The following table summarizes each ground, what you must prove, and how soon the family court can grant a final divorce:

Is Adultery a Ground for Divorce in South Carolina?

Yes. One of the fault-based grounds for divorce in South Carolina is adultery. To establish adultery, you do not need direct proof that the sexual act actually happened. Instead, you can prove adultery by showing “inclination and opportunity” by a clear preponderance of the evidence. You may show inclination with evidence that a spouse had a romantic or sexual interest outside the marriage.

For example, if the spouse joined online dating sites or sent romantic texts and emails to another person, that may be evidence of “inclination.” Opportunity is established when you can demonstrate that the spouse had a chance to act upon their inclination. For example, if a husband spends the night in a hotel room with a woman other than his wife, that may be evidence of opportunity. The court considers the evidence as a whole; inclination or opportunity alone does not establish adultery.

In South Carolina, a spouse who commits adultery before the parties formally sign a written property or marital settlement agreement or before entry of a permanent order of separate maintenance and support or a permanent order approving such an agreement cannot receive alimony. For more information, read our article on how to prove adultery in South Carolina.

Is Habitual Drunkenness or Drug Abuse a Ground for Divorce in South Carolina?

Yes. Habitual drunkenness, including habitual drunkenness caused by the use of any narcotic drug, is one of the fault-based grounds for divorce in South Carolina. To prove this ground, you must show a pattern of drunkenness (not a single occasion or rare occasions) that contributed to the marriage’s breakdown. Evidence of habitual drunkenness at or near the time of filing may be important to your case.

There are many ways to prove habitual drunkenness or narcotic abuse, such as:

• Testimony from you, friends, and family regarding your spouse’s drunkenness or drug use;
• Failed employer drug tests or loss of a job due to drunkenness or drug use;
• Records from medical facilities or rehabilitation centers;
• Records of arrests for DUI or possession of drugs;
• Records of purchases from liquor stores, wine shops, etc.; and
• Audio and/or video records that show your spouse intoxicated.

Is Physical Cruelty a Ground for Divorce in South Carolina?

Yes. Physical cruelty is one of the fault-based grounds for divorce in South Carolina. To obtain a divorce on the ground of physical cruelty, you must be able to show actual personal violence, or a course of physical treatment that endangers your life, limb, or health and makes living together unsafe. A single assault may suffice if it is life-threatening, indicates an intent to do serious bodily harm, or creates a reasonable apprehension of great bodily harm in the future.

In South Carolina, the spouse alleging physical cruelty must prove his or her case by a “preponderance of the evidence,” meaning evidence that convinces the court the claim is more likely true than not. The family court judge will make the final decision, and your divorce lawyer can review the facts of your case and the evidence you have to help you decide whether you have enough evidence to prove your case. For more information, read our article on getting a divorce in South Carolina based on physical cruelty.

There are many ways to prove physical cruelty, such as:

• Testimony from you, friends, and family regarding your spouse’s physical cruelty;
• Photographs of injuries;
• Medical records covering treatments for injuries;
• Records from law enforcement, such as 911 calls and incident reports; and
• Records of arrest for criminal domestic violence.

Other than being a ground for divorce, physical cruelty can have drastic effects on a divorce case. If custody is involved, the court must give weight to evidence of domestic violence in deciding custody, and it may restrict visitation when necessary to protect the child.

Also, physical abuse may be relevant to the court’s consideration of alimony or division of marital property. For example, in one South Carolina case, the family court awarded permanent alimony in a marriage that was barely one year long, where one spouse was abusive on repeated occasions. If you are in danger, please read our article on what to do if your spouse abuses you in South Carolina.

Is Desertion a Ground for Divorce in South Carolina?

Yes. Abandonment or desertion for one year is a fault-based ground for divorce in South Carolina. To prove desertion, you generally must show that your spouse willfully left the marriage for at least one year, that you did not consent to the separation, and that your spouse had no legal justification for leaving. While divorce on the ground of desertion was once the most common ground for divorce, we rarely see it in family court today. Rather, most divorces are granted on the ground of one year’s continuous separation, which does not require proof of fault.

How Does a No-Fault Divorce Based on One Year’s Separation Work in South Carolina?

One year’s continuous separation is the only “no-fault” ground for divorce in South Carolina. The parties do not need to file anything with the court to start this one-year clock, but they must live separate and apart without cohabitation for at least one continuous year. If the parties get back together and live together again during that year, the one-year clock may start over.

To prove one year’s continuous separation, you ordinarily must:

• Testify that you have lived separate and apart from your spouse without cohabitation for at least one year; and
• Present corroborating evidence, often testimony from an independent witness, that you have lived apart from your spouse for at least one year.

Many no-fault divorces are also uncontested divorces, where the spouses agree on property, alimony, custody, and support before the final hearing.

Can You Be Separated While Living in the Same House in South Carolina?

Generally, no. South Carolina requires spouses to live separate and apart for one year to obtain a no-fault divorce, and living under the same roof usually does not count as living separate and apart, even if the spouses sleep in different bedrooms. For this reason, one spouse usually needs to move to a different residence to start the one-year period. Before you move, read our article on whether you should move out before a divorce in South Carolina.

How Long Does a Divorce Take Based on Each Ground in South Carolina?

On the fault-based grounds of adultery, habitual drunkenness, and physical cruelty, the family court cannot grant a final divorce until at least three months after the divorce complaint is filed. A divorce based on one year’s desertion or one year’s separation can be granted without an additional three-month waiting period once the required one-year period has passed and responsive pleadings have been filed or the respondent has been adjudged in default. In practice, contested cases often take longer because of discovery, mediation, and trial. For more information, read our article on how long a divorce takes in South Carolina.

What is the Significance of Fault-Based Grounds for Divorce in South Carolina?

Fault-based grounds for divorce in South Carolina, such as adultery, matter because “fault” can affect whether one spouse pays the other spouse’s attorney’s fees. Fault also affects alimony and how the family court divides the parties’ assets when the legal requirements for considering that misconduct are met. Lastly, fault can impact child custody and visitation if the misconduct bears on the child’s best interests. A fault-based ground may also allow a divorce to be granted sooner than waiting a full year of separation.

What Defenses Can a Spouse Raise to a Fault-Based Divorce in South Carolina?

A spouse accused of fault may raise several defenses. One is condonation, which means the innocent spouse knowingly forgave the misconduct, such as by reconciling and continuing to live together after learning of it. Condonation may be conditional, and later misconduct can affect whether the earlier conduct may again be relied upon.

Another defense is recrimination, which generally involves proof that the spouse seeking the fault-based divorce also committed conduct that would be grounds for divorce. If a defense applies, the court may deny a divorce on the fault-based ground, although the spouses can still seek a divorce based on one year’s continuous separation.

Is Emotional Abuse or Mental Cruelty One of the Grounds for Divorce in South Carolina?

We know that a spouse’s emotional abuse or mental cruelty can take its toll on you both psychologically and physically. In fact, many of our clients come to us seeking a divorce because their spouse is cruel to them or the parties’ children. Unfortunately, emotional abuse or mental cruelty is not one of the grounds for divorce in South Carolina. Essentially, South Carolina’s laws have not kept up with the reality that emotional or mental abuse can be as harmful as physical abuse. However, evidence of emotional abuse may still matter in deciding issues such as child custody and alimony.

Is Child Abuse Grounds for Divorce in South Carolina?

Tragically, while physical cruelty to a spouse is grounds for divorce in South Carolina, child abuse is not a separate statutory ground for divorce. In other words, if your spouse physically abuses you, that conduct may establish marital “fault” upon which you can base your divorce.

However, if your spouse physically or sexually abuses your child, that abuse alone is not a separate ground upon which you can base a divorce; the surrounding conduct may support another ground if its requirements are met. Child abuse is, however, highly relevant to child custody and visitation, and the family court can take steps to protect the child.

If you are still deciding who should represent you, our article on how to choose the best divorce lawyer in Charleston explains what to look for and what to ask.

Our article on how to file for divorce in South Carolina walks through the forms, filing, and service step by step.

Do You Need a Divorce Lawyer in Charleston?

If you are getting a divorce in Charleston, Berkeley, or Dorchester, contact us today. Our Charleston divorce lawyers will guide you through family court every step of the way. We’re practical, efficient, and reasonably priced. We don’t take risks with your family, money, or future.

For a deeper look at the South Carolina divorce process, download our free book on divorce in South Carolina. It is available as a PDF or on Apple Books at no cost.

Contact our Charleston divorce lawyers at Futeral & Nelson, LLC today to discuss your case.