Desertion and Divorce in South Carolina
In South Carolina, you can file for a no-fault divorce, or you can file for divorce based on fault grounds, alleging that some action by your spouse led to the breakdown of your marriage. One of those fault grounds is desertion—but there are misconceptions about what that means and what constitutes spousal abandonment. To learn more about abandonment and desertion in divorce in South Carolina, contact Brinkley Law Firm.
What is Spousal Abandonment?
South Carolina domestic relations law states that a divorce from the bonds of matrimony may be granted based on “desertion for a period of one year.” But it’s important to realize that what feels like desertion to one spouse may not be considered desertion for purposes of granting a South Carolina divorce.
Technically, there is no such thing as “spousal abandonment” in South Carolina. “Abandonment” refers to a parent’s abandonment of minor children. When referring to one spouse leaving the other, “desertion” is the correct legal term—and it is narrower than you might imagine.
The Definition of Desertion in Divorce
In the context of grounds for South Carolina divorce, desertion refers to one spouse living separately from the other without cause and without the other spouse’s consent. For the departure to constitute desertion, the spouse who left must have no intention to return or to reconcile with the other spouse, and must be absent continuously for a year.
Is Moving Out of the Marital Home Considered Desertion?
One of the most common myths that we hear about desertion and divorce revolves around the decision to move out of the marital home. Many people are afraid that if they move out of the house they share with a spouse that they will be found to have “deserted” the marital home and will lose any rights to the home in the divorce.
Simply put, this isn’t true. While desertion and other fault-based grounds for divorce can have some impact on division of property in a South Carolina divorce, you do not agree to forfeit your property rights to your marital home by moving out.
What Facts Support a Finding of Desertion?
If just moving out of your marital home doesn’t constitute desertion, what does? Absence from the home for at least a year is essential. Showing how long the deserting spouse has been absent from the marital home might be one of the more straightforward aspects of proving desertion in a divorce. It can be more challenging to prove the deserting spouse’s intent or whether the other spouse consented to their absence.
The facts of a case can be used to support or rebut one spouse’s claim that the other spouse deserted them. For instance, if a spouse left the marital home without saying why they were leaving or where they were going, those facts would support a finding that the spouse who left intended to desert the other spouse. Similarly, if the spouse who moved out blocked the other spouse’s number on their phone and refused to communicate with them, that would also suggest that they didn’t want or intend to reconcile.
On the other hand, regular communications and meetings between the spouses, or payments of support, might suggest that the spouses were choosing to live separately, but not that one had deserted the other.
Pros and Cons of Filing for Divorce on Grounds of Desertion
In many states that offer both fault-based and no-fault divorce, one advantage of filing for divorce on fault grounds is that the divorce may be able to be granted sooner; no-fault divorce often requires the couple to live “separate and apart” for a year before seeking a divorce, while there may be no waiting period for a fault-based divorce.
Obviously, since a divorce based on desertion requires that the deserting spouse has been out of the shared home for a year, speed is not one of the advantages of divorce based on desertion. Even so, there may be a good reason to seek a fault-based divorce over a no-fault divorce if your spouse has deserted you.
One major reason to consider a desertion divorce is that there may be a tactical advantage that could affect property division. If your spouse is at fault in the divorce, the court may award you a somewhat larger share of marital property. To the extent that your spouse deserting you also constitutes abandonment of your minor children, a finding of desertion could mean a more favorable custody determination for you, the parent who was around to care for the kids. Lastly, if your spouse deserted you, you may be more likely to get an award of alimony.
On an emotional level, filing for divorce based on desertion may also provide some satisfaction: your spouse did something wrong and caused your marriage to end, and you are not giving them a “free pass” for their bad behavior.
On the other hand, you may not want to reject the idea of filing for a no-fault divorce. A fault-based divorce is usually more contentious, and it may be more work (and expense) to prove that your spouse was at fault. Talk to your divorce lawyer about whether it makes sense to file for divorce based on desertion, or whether a no-fault divorce is better for you.
Work with an Experienced South Carolina Divorce Attorney
Whether you are considering filing for divorce against your spouse due to desertion, or your spouse has accused you of desertion in divorce papers, you should have experienced representation to protect your interests. To learn more about desertion and divorce in South Carolina, contact Brinkley Law Firm to schedule a consultation.