Is South Carolina a No-Fault Divorce State?

The short answer is both “Yes” and “No.”

When a couple decides to end their marriage, one of the first decisions they must make is choosing the legal grounds for filing for divorce, or whether they are eligible to file for a no-fault divorce.

Like many other states, South Carolina traditionally only recognized fault-based divorce. In a fault-based divorce, the couple needed to identify some type of misconduct, such as adultery, physical cruelty, habitual drunkenness, or abandonment, as a reason for the divorce.

Today, South Carolina, recognizes a version of no-fault divorce which allows a couple to end their marriage without the need to prove the other spouse did something wrong.

While a no-fault divorce has simplified and expedited the process for ending a marriage, fault-based divorce remains an important option. Couples considering divorce must understand the differences between fault-based and no-fault divorce, as this choice can significantly impact the divorce process.

The family law attorneys at Brinkley Law Firm, LLC, can help you explore your options and provide valuable guidance on the best path forward for you and your family.

What Is a Fault-Based Divorce?

In a fault-based divorce, the individual filing for divorce must prove that the other spouse engaged in conduct that caused the marriage to fail. South Carolina law recognizes the following reasons as legal grounds for divorce: adultery, physical cruelty, habitual drunkenness, or abandonment.

Once a couple files for fault-based divorce, assuming the spouse who filed can prove the grounds for the divorce, there is no need for the couple to live in separate households before the divorce will be finalized. Some fault-based divorces can be finalized in as little as 90 days.

What Is No-Fault Divorce?

Customarily, a no-fault divorce avoids the need to blame the other spouse for the breakdown of the marriage, which can avoid the animosity that divorce can sometimes bring. A couple can file for no-fault divorce by claiming they have irreconcilable differences that make it impossible to maintain the marriage.

If one party claims irreconcilable differences, the other spouse cannot object. Voicing an objection would be considered proof of irreconcilable differences.

Who Is Eligible for No-Fault Divorce?

South Carolina’s version of a no-fault divorce is based on living separate and apart for 1 year. Prior to the 1 year, parties can file an action for “separate maintenance and support” to dissolve the marital estate and address all child related issues, short of obtaining a divorce until the 1 year has run. However, to file this kind of action, the parties must be living apart and not under the same roof (i.e., no living in separate bedrooms). Until someone moves out, the court does not have jurisdiction unless there are fault grounds, in which case the parties could still be living together when the divorce petition is filed.

What Are the Benefits of No-Fault Divorce?

No-fault divorce offers several benefits that have made it the preferred choice for many divorcing couples.

Lower Costs

Fault-based divorce often requires longer court proceedings and gathering of evidence to prove the grounds for divorce. A no-fault divorce can streamline the process by eliminating the need to prove grounds for divorce, which can allow a couple to finalize their differences quickly and with lower legal fees. Many no-fault divorces can be handled through simplified legal procedures like mediation or collaborative divorce. Still, while the underlying issues can be resolved like division of the marital estate, child support and custody, etc., the actual divorce cannot be obtained until the couple has lived separately for 12 months.

Reduced Conflict and Emotional Harm

By eliminating the need to prove grounds for divorce, a no-fault divorce removes the incentive for airing grievances, assigning blame, or bringing up painful details of marital problems. This can make the divorce process less acrimonious and preserve a cooperative relationship between spouses, which can be particularly important when children are involved.

Increased Access to Divorce

Before no-fault divorce laws were enacted, a spouse who could not prove specific grounds for divorce often had no legal recourse and was forced to remain in an incompatible but not abusive marriage.

What Are the Drawbacks of a No-Fault Divorce?

While there are many advantages to this type of divorce, it is not the best choice in every situation.

• Because no-fault divorce eliminates the need to assign blame, marital misconduct that might otherwise influence the outcome of property division, alimony, and child support payments might not be considered. No-fault divorce might not be the best option for a spouse who might have otherwise received more assets in a fault-based divorce.
• Proving wrongdoing can lead to feelings of vindication.
• No-fault divorce can be unilateral, meaning the spouses do not need to agree that the marriage is beyond repair.

Contact a South Carolina Divorce Attorney at Brinkley Law Firm Today

If you are considering divorce, the family law attorneys at Brinkley Law Firm are here to guide you and your family and help you explore your options to find the best path forward.

Brinkley Law Firm is located in Greenville and assists clients throughout South Carolina in divorce and other family law proceedings. Contact our law firm today to schedule a consultation to discuss your situation and how we can assist you.