Dissolution of Marriage

Question 1

Annullment

Answer 1

Annulment is the process by which a party may seek judgment that a marriage is invalid (or voidable), the result of which is to treat the parties as though they had never been married.

Question 2

Grounds for Annullment

Answer 2

(must exist at the time of entry into marriage)

(1) Failure to consummate by cohabitation
(2) Duress (can lose this ground)
(3) Fraud as to a fact essential to the marriage
(4) Affinity and Consanguinity

Question 3

Effects of Annullment

Answer 3

There is no alimony, though temporary support may be available during pending annulment action. Custody is decided as in divorce. Children are legitimate when they are the product of an “innocent” bigamous marriage. Property distribution presumably follows the factors governing equitable distribution.
Only a party to the marriage can seek the annulment of a voidable marriage.

Question 4

Defenses to Annullment

Answer 4

are similar to divorce:

(1) Condonation
(2) Laches
(3) Ratification
(4) Recrimination
(5) Unclean hands

Marriages that are void ab initio are not grounds for annulment. These include:

(1) marriages by minors under 16
(2) marriage by a party lacking capactity
(3) polygamous/bigamous marriages
(4) same sex marriages

Question 5

Divorce

Answer 5

The Family Court has jurisdiction over annulments, divorces, child custody, and child visitation.
The Family Court has no jurisdiction over contract disputes, property disputes between mere cohabitants, claims of waste of marital property against a child, collection of debts, or awards of money damages.

Question 6

Waiting Period

Answer 6

For fault-based divorce, there can be no hearing before two months after the filing of the complaint and no final decree before three months after such filing. For no-fault divorce, or divorce based on desertion, the hearing may be held and the decree issued after responsive pleadings have been filed or the respondent has been adjudged to be in default. Reconciliation. The Family Court must attempt to reconcile the parties before granting a divorce.

Question 7

Residency

Answer 7

Residency is synonymous with domicile and is the place where a person has his true, fixed, and permanent home with the intent to remain for an unlimited period. The length of time of residency required to file for divorce in SC depends on whether one or both parties lives in SC.

(1) If only one party is a resident of SC, he or she must have resided in SC for at least one year prior to the commencement of the action.
(2) If both parties are residents, they must have resided in SC for 3 months prior to filing.

Question 8

Personal Jurisdiction -Out of State Respondents

Answer 8

Proceedings may be brought against out-of-state respondents. Personal jurisdiction is based on physical presence within SC, ownership of property in SC, or minimum contacts with the state.

Question 9

Venue

Answer 9

Actions for divorce must be tried in the county

(1) in which the defendant resides at the time of commencement
(2) in which the plaintiff resides, if the defendant is a non- resident; OR
(3) in which the parties last resided together as husband and wife, unless the plaintiff is a non-resident, in which case it must be brought in the county in which the defendant resides.

Question 10

Corroboration

Answer 10

All grounds for divorce must be corroborated. The parties’ testimony will not suffice alone to establish a ground. This requirement may be waived where the possibility of collusion is not an issue.

Question 11

Ground

Answer 11

There are five grounds for divorce in SC:

(1) Adultery
(2) Desertion a. cessation from cohabitation for one year b. intent not to resume cohabitation by absent party c. absence of consent d. absence of justification
(3) Physical cruelty
(4) Habitual drunkenness (includes drug abuse)
(5) Living separate and apart for one year with NO cohabitation (NO FAULT)

Question 12

Defenses to Divorce

Answer 12

(1) Collusion—a secret agreement between two or more parties for a fraudulent, illegal, or deceitful purpose
(2) Condonation—conditional forgiveness or remission of a previous offense, the implied condition being that the guilty party shall refrain from again committing the matrimonial offense.
(3) Connivance—consent to the misconduct that occurs before the misconduct
(4) Insanity
(5) Provocation
(6) Reconciliation—a resumption of the former marriage relationship in its fullest sense. Reconciliation is unconditional forgiveness and is not conditioned upon the fault not reoccurring.
(7) Recrimination—the accused party makes a similar accusation against the plaintiff
A divorce obtained in another jurisdiction is of no force or effect in SC if both parties were domiciled in SC at the time the other proceeding commenced.