Divorce Flashcards
What are the residency requirements of the parties for the SC Family Court to have jurisdiction over their divorce?
See S.C. Code 20-3-30:
One party must have resided in S.C. at least one (1) year; if both parties are residents of S.C. then they only need to have resided in S.C. for three (3) months.
If both parties are domiciliaries of S.C. then they cannot obtain a valid divorce in a different state or country.
What are the required delays in a SC action for divorce?
Per S.C. Code 20-3-80:
The parties must wait at least two (2) months from date of filing for a final hearing and they must wait at least three (3) months before a divorce decree may be issued.
Exceptions:
Divorce on the grounds of Desertion or Separation for One Year. The hearing may be held and the decree issued after the responsive pleadings have been filed or after the respondent has been adjudged to be in default, whichever occurs first.
What is the term used for the civil equivalent of fault grounds?
Cause of Action
What is one reason that someone may prefer to plead fault grounds for divorce?
You can obtain a quicker divorce. A divorce action can be filed as soon as the ground arises and the divorce can be granted 3 months later.
Upon what five (5) grounds may you file for divorce in SC?
1 Year and the 4 A’s:
(1) One Year Continuous Separation [Not a Fault Ground];
(2) Adultery;
(3) Abandonment (Desertion for a period of one (1) year);
(4) Abuse (Physical Cruelty); and
(5) Alcoholism (habitual drunkenness).
What are 2 fault grounds that are not available in SC, but that may be available in other states?
(1) Mental Cruelty
(2) Conviction of a Felony
What are the requirements to prove Physical Cruelty?
- Physical Violence is Required
- Actual personal violence, or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe
- Governed by the particular circumstances of each case
- “Slight Violence” not enough; generally, a single act of physical cruelty does not constitute a ground for divorce, UNLESS it is so severe and atrocious as to endanger life, or unless the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future.
What are the requirements for proving Habitual Drunkenness?
- You do not have to specify what substance the spouse is habitually abusing (it doesn’t have to be alcohol; could be narcotic drug, marijuana, or amphetamines);
- Timing is key; the habitual drunkenness must be near or at the time of the filing of the action for divorce.
- A fixed habit of frequently getting drunk may be enough; you need not necessarily prove continual drunkenness.
What are the requirements for proving Adultery?
“Opportunity and Inclination”
Clear and convincing proof, by a clear preponderance of the evidence, sufficiently specific as to time and date, that there is/was an inclination to commit the adultery and that there was an opportunity to do so are enough to prove that an adulterous relationship has occurred. The evidence can be, and usually is, circumstantial.
Remember, the Rules require that you plead with specificity; with whom and where should be included.
Is it adultery if the parties are already separated?
Yes. Post-Separation Adultery IS Adultery. It can have an effect on the outcome of the divorce case with regard to equitable apportionment of property and alimony.
SC Code 20-3-130(A):
(A) In proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support, the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, pendente lite, and permanently. No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.
What are the requirements for a divorce on the grounds of Desertion for a Period of One Year (Abandonment)?
SC Code 20-3-10(2)
- Desertion for a period of one year.
- Desertion is defined as willful abandonment of cohabitation for a sufficient period of time, usually lasting one year.
Is “Constructive Desertion” a fault ground in SC?
No, because in SC, the complaining spouse must show that he/she was compelled to leave because of the conduct of the other spouse, but that conduct, in and of itself, would then constitute a fault ground.
Can you file for divorce if you are still cohabiting with your spouse?
Yes. The Family Court may hear divorce cases on the fault grounds of adultery, habitual drunkenness, or physical cruelty EVEN IF the parties are still together under the same roof.
Even so, do not encourage your client to stay in an unsafe home. You will want the court to address the living arrangements at the temporary hearing.
In what year did S.C. adopt what is commonly known as No Fault Divorce and what were its requirements then? What is required now?
In a 1969 amendment to the State Constitution, a divorce could be granted upon the grounds of three (3) years continuous separation. Now the requirement is only one (1) year continuous separation.
How soon after filing for a divorce on the grounds of One Years Continuous Separation may a divorce be granted?
SC Code 20-3-80:
A divorce on this ground can be granted immediately after the Defendant spouse files a responsive pleading or, if the Defendant does not respond, then 30 days after the Defendant spouse is served with the summons and complaint.
