Reviewed: Discussing the No Fault South Carolina Divorce

What does “no fault” mean, anyway?

Well, a no fault divorce means that you do not qualify for a fault-based ground or you do not want to pursue a fault based ground for divorce.  The fault based grounds for divorce are adultery, abandonment, physical cruelty and habitual drunkenness/drug use.  Many times in an uncontested matter or when the husband and wife have been separated for several years, they may decide to forgo filing on a fault-based ground even though they could substantiate that with evidence in court.

How to Prove a No Fault Divorce in South Carolina

In order to prove a no fault divorce in South Carolina you must show several things: (1) the separation must be voluntary; (2) you must be living separately and apart; (3) must be for more than one year.  Let’s take these in order.

1.  Voluntary Separation

In order to qualify for the divorce on no fault grounds, you must be voluntarily separated.  Now, sometimes in marriages one person really wants a divorce and the other person really wants to save the marriage, but the first person moves out any way.  While this is not “voluntary” on the part of the spouse who wants to save the marriage, it is voluntary separation because the parties have the choice to live together or not.  This is easier to see when described from another viewpoint.  An involuntary separation would be one where one spouse was carried off to jail during the marriage and while the parties are separated, the “free” spouse decides she should get a divorce and move on.  If the separation only occured because of the arrest and incarceration then that is not voluntary.

2.  You Must Live Separate and Apart

When couples begin to feel the strain and they are leaning towards a separation they may, at first, in an attempt to save money have one of the parties move into the bedroom down the hall or into the basement so they are not sleeping together.  But, under South Carolina statutory and common law this is not living separate and apart.  In order to obtain the no fault divorce in South Carolina you must live in separate residences.  The South Carolina Supreme Court has also held that living in a camper on the same property is not living separate and apart because the husband was still using the house for cooking, showering, etc., even though he was doing that stuff after the wife had gone to work.

3.  Separated for More than One Year

Before you can even file for divorce in the family court on the no fault ground you must have been voluntarily living separate and apart for more than one year. That means just what it says – more than 365 days must elapse from the time you separate before you file for divorce.

I recently wrote a post about how “legal” the separation has to be but to summarize, you do not have to have a court ordered “legal separation” before the clock starts to run on your 12 months.  The time starts ticking the day one of you moves out.  But, if you move back in together to attempt reconciliation (or even just for one night of passion) your time could start back over.  The law is not clear on that point.

It is also interesting to point out that this divorce ground can be awarded immediately upon the filing of responsive pleadings (an Answer by the defendant).  That means there is no waiting or time limit involved like in the fault-based grounds where you must wait at least 90 days from the time you file your action to have a final hearing.

Comments

  1. Toni Nazon says:

    My husband and I have been living separate and apart for one year.
    We have 2 small children. My daughter is 2 years old, and my son is 6 months old.
    Will I need an attorney if he wants to give me sole custody of them?

    • I always recommend having an attorney – especially when children are involved – to make sure you have been completely advised of your rights and to make sure that the paperwork is drafted properly to provide for the proper custody/visitation/support provisions for your children.

  2. I never lived with the person that I married and there was never any kind of sexual relationship either. We do not have any children or property or anything together. I want to get a divorce, I have not seen him in years so I do not know his address or phone number. How can I file for a divorce ?

    • Thanks for your comment on my blog. Rather than replying in the post, I thought I would contact you directly by e-mail. It is possible to get a divorce when you do not know where your spouse is. The way you go about getting them served is by publication if you do not know any other way to contact them. In order to serve a defendant by publication you must have court approval. I’ve written about this previously on the blog here:

      http://www.upstatefamilylawblog.com/serving-divorce-papers-on-your-spouse/

      If you’re in the upstate area of South Carolina, please contact me through the blog at by telephone and we can schedule an appointment to discuss the remaining issues in your case.

      Thanks,

      Tripp

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