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Residency for South Carolina Divorce

-To file for divorce, you must meet the residency requirements of SCs divorce laws
-If both spouses are residents, the plaintiff spouse must have lived in SC for at least 3 months
before filing
-If only one spouse lives in SC (plaintiff/defendant), then plaintiff/defendant must have lived in
SC for at least 1 year before filing (SC Code Ann 20-3-30 & 20-3-60)
Grounds for a SC Divorce
-Most couples in SC divorce based on the No Fault grounds of living separate for 1 year
-But, you can proceed immediately if you have fault grounds
-Idea is that someone has done something so bad that we want you to move on
No Fault Divorce (living separate for 1 year)
-Separation may occur by mutual consent or by one of you leaving or being expelled from the
home (with the intent to divorce).
-Can proceed immediately if you have a state-recognized reason
-May affect alimony and equitable distribution
-Requirements:
-1 Year of Separation
-If you get back together then the clock restarts
-Separation must be voluntary and conscious that separation is for divorce reasons
-Need consent to the separation period
-Need intent to divorce before separation (military service/jail wont count
w/o intent)
-Must be actual, not constructive; you are not considered separated if
you/spouse live in the same home (cohabitate)
-Sex probably restarts the clock
-Desertion
-If one party does not want the other party to leave then you may have grounds for
desertion
-Adulterous act and perhaps dating
-Sex with another person during the 1 year separation period is
adultery
-Issue: Can you contract around the no-sex rule?
-Maybe if you agree beforehand and sign a contract
(SC law suggests courts will enforce K)
Adultery (they cheated)
-For adultery, you will need to prove Inclination and Opportunity
-May be proven by direct and indirect (circumstantial) evidence.
-The proof must be sufficient to identify the time and place.
-The standard of proof is preponderance of the evidence.
-Sexual relationships with a person of the same sex while a person is legally married is adultery
-Benefit goes to spouse who didnt cheat
-Dont have to pay alimony to a cheating spouse
-Less than sex can be Adultery
-Opportunity leads to presumption in finding sexual intercourse (accuser-friendly)

Desertion (they left me)


-Commonly called abandonment and must be the complete cutting off of support and contact.
-You must show:
-Cessation from cohabitation for 1 year
-Intent not to resume cohabitation
-Absence of consent on the part of the party being left
-Absence of justification for cessation
-Spouse did not cause leaving spouse to leave
-Ex. Wouldve been desertion, but the staying spouse gave grounds for
leaving (cruelty)
-To claim desertion, you must show that at any point after your spouse left, you were willing to
take them back
-Ex. Locked out and told to leave = desertion; no-sex + couch = desertion
Physical Cruelty (They hit me often.)
-Requires some proof of the abuse
-A single accident will probably be insufficient cause
-May need to show a pattern
-Moral or verbal abuse is not grounds for divorce
-To prove abuse, must show:
-Actual physical violence or a cause of treatment endangering life, limb, or health; AND
-Living with the spouse is unsafe
-Level of violence required is unclear (bias against men in SC)
-Shoot/or shoot and miss might be cruelty
-Hiring a hit man is not enough
-A few slaps is probably not enough
-No emotional cruelty because of issues with proof and no danger for life
-Child abuse does not count
Habitual Drunkenness (They got drunk/high all the time.)
-A regular habit that prevents the person from performing normal activities of everyday life
-Must show:
-A fixed habit (that caused the breakdown of the marriage)
-That fixed habit exited at or near the time of filing
Defense to Fault-Based Divorce (Why Defendant is not at fault)
-Recrimination (he/she did it too!)(he/she also at fault!)
-Where the defendant counterclaims that the plaintiff is guilty of a ground for divorce
-If both parties are at fault then neither party can get a divorce
-This leaves them where they are MARRIED
-The idea of fault divorce is based on the concept of guilty party/innocent party
-If both are guilty, then not a fault based divorce
-Even if the grounds of divorce are different (ex. Cruelty/adultery),
-Recrimination will not constitute a defense to the statutory ban of alimony

-Ex. If a party is barred from receiving alimony b/c of adultery then they cannot
defeat the bar by saying He cheated too!
-Connivance (he/she set me up!)
-Occurs when the innocent spouse creates a situation for the other spouse to commit the
misconduct
-Ex. Setting up your husband to cheat
-Sometimes you can use the defense of connivance if the innocent spouse does not
actively attempt to prevent the misconduct (adultery)
-When this type of situation occurs, both parties are barred from getting a fault based
divorce
-However, connivance will not rebut the bar of alimony for adultery
-Condonation (he/she forgave me and we got back together it was agreed to by spouse
who wants divorce)
-Is the forgiveness/excuse/condoning of an offense
-If a spouse commits acts which give the innocent spouse grounds for a fault divorce
but the innocent spouse forgives the acts, the at fault spouse can use condonation as a
defense if they can show the acts were forgiven/agreed to
-Ex. H commits adultery, W forgives, they have sex and H moves back home
Condonation (condition on them not doing it again)
-However, alimony will not be barred for forgiven adultery. Also, if you commit the act
again, it revives the previous adultery and the spouse can get a fault divorce based on
adultery.
-Key elements: Forgiveness, Mutual Intentions to resume full marital relations, and Full
Knowledge of the marital offense
-Reconciliation (We got back together 1 year clock starts)
-Similar to condonation but does NOT require forgiveness.
-Elements of reconciliation:
-Mutual intent to resume full marital relation
-Full knowledge of marital offense
-There are no conditional elements
-Prior marital fault can never be revived
-Collusion
-Both parties want a divorce and agree to fault-based divorce where there is NO REAL
FAULT
-A party cannot consent to a divorce and this type of collusion is fraud on the court
-In SC, wed just make you wait a year and get a no-fault divorce
-Insanity
-The defendant can use insanity as a defense to divorce
-The burden is on the defendant to show they are insane
-Ex. I didnt know what I was doing was wrong or I was not in control of my
actions
-Must show the court that you are incompetent and irresponsible for your actions
-The idea is that you cant fault someone for being mentally ill
-Provocation
-The inciting of another to do a certain act
-The act must be proportional to the provocation

-Ex. Spouse pushes you, you (provoked) push back


-Often used as a defense to physical cruelty
-Can be used as a defense to abandonment
Tort Claims
-IIED: Ask for something outrageous and beyond bounds of decency
-Elements of IIED:
-Defendant acted intentionally or recklessly
-Conduct was extreme and outrageous
-Defendants actions caused plaintiff emotional distress
-Plaintiffs emotional distress was severe
-In SC, there is no interspousal tort immunity, but SC has not addressed whether IIED
could be applied to marital conduct
-In SC, we know that SC does not recognize claims for emotional harm in marriage
-However, even if the two claims (fault divorce & IIED) could be tied together, a spouse
should not be able to recover tort damages for the same fault conduct that was considered
in division of marital property
-Best way to get this would be to go for a no fault or fault/adultery divorce and
THEN bring IIED claim
Property Division (Equitable Distribution)
-The rule for marital property in SC is that the marital estate assets and debts are to be divided in
an equitable manner
-This means that the court will divide the property and assets in a fair and equitable way, but not
necessarily equal division.
-There is not a fixed standard to divide property and each case will be decided on its facts and
misconduct or fault matters in division decisions
-Marital Property: All property acquired during marriage except for that acquired by gift or
inheritance.
-Everything that you earn during the marriage that is not derived from separate property
(ex. Rent) is marital property
-Separate Property: Acquired before marriage, after divorce proceeding, according to a contract
designating property as separate, and property obtained by gift or inheritance
-SC Cts try to come close to 50/50 and then use discretion to avoid more/less
-In making an equitable apportionment of marital property, the family court must give weight in
such proportion as it finds appropriate to all the following factors (SC Code Ann 20-7-4723):
-Duration of marriage plus ages of parties when married/divorced
-Marital misconduct or faultless if it had an economic impact and destroyed marriage
-Value of marital property and each spouses contribution including contribution of
spouse as homeowner
-Each spouses income, earning potential, and any future assets
-Physical and emotional health of each spouse
-Either spouses need for additional training/education in order to make money
-Non-Marital property of each spouse
-Existence/nonexistence of vested retirement benefits
-Whether maintenance or alimony has been awarded

-Whether the spouse receiving custody should stay in or receive the marital home
-Tax consequences of the equitable apportionment
-Existence/extent of prior support obligations
-Liens, encumbrances, and debts upon marital property
-Child custody arrangements and obligations
-Any other relevant factors as trial ct. enumerates
-Source of Funds Rule
-When separate/non-marital property/funds are comingled with marital property
-Determine the ration (amount paid/value property) of the non-marital and marital
investment in the property (think of them separately)
-Then, only the amount of marital property is subject to equitable distribution
-Separate property can become marital but not vice versa
-Economic Dissipation
-When a spouse wastes marital assets
-The owner of marital property has a duty (in the event of a divorce) to deal with
marital property in good faith and protect from dissipation
-The wasting of marital assets must occur for a non-marital purpose at the time
when the marriage is undergoing an irreconcilable breakdown
-Only liable for dissipation after the breakdown of the marriage
-To prove: Look for an intent to waste marital assets PLUS some type of improper
conduct (lying/concealing)
-Once parties decide to divorce they should try to preserve their marital assets as
much as possible

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