Fault vs. No-Fault Divorce

What is the Difference Between an At-Fault Divorce, and No-Fault Divorce?

There are five grounds for divorce in South Carolina, four of which are categorized as “at-fault” grounds. Under these grounds, both spouses do not need to agree to a divorce, since the potential defendant would not have an acceptable defense to the accusations. At-fault grounds may be raised if one party has engaged in:

  1. Physical Cruelty – Defined as actual physical violence that endangers one’s life or health, and renders the continued cohabitation unsafe. The court requires proof of more than one act in violence, unless that one act is severe. Sometimes this is difficult to prove because there are no witnesses to the abuse. It is important to note that mental and emotional abuse are not grounds for divorce in South Carolina.
  2. Adultery – Adultery is defined as the sexual intimacy with a person other than your spouse. It requires showing proof of both the romantic inclination, and the opportunity to commit a sexual act. This is typically proven by a licensed private investigator. Adulterous behavior can be heterosexual or homosexual in nature.
  3. Habitual Drunkenness – When one of the parties engages in the regular, routine consumption of a substance to the point of intoxication. This can include alcohol, illegal drugs, or excessive legal drug use.  Habitual drunkenness is generally proven by third-party witnesses who have observed the substance abuse and resulting actions.
  4. Desertion – When the parties have not lived together for one year or more; there is a lack of intent to resume cohabitation; and an absence of consent by one spouse to the separation and absence of justification for the cessation of cohabitation.


No-Fault Divorce in South Carolina

A fifth ground for divorce is an application for divorce after the husband and wife have lived separate and apart, without cohabitation, for a period of one year. In this circumstance, couples may obtain a divorce without either party claiming legal fault for the divorce. Even with a no-fault divorce, Family Courts may still consider fault grounds when making decisions regarding alimony and custody.

What is a Legal Separation?

While the application for divorce without cohabitation requires a year of separation between husband and wife, there is no legal status of separation that couples must obtain other than failure to cohabitate. However, South Carolina does maintain an action for “Separate Support and Maintenance,” which is similar to a legal separation in many states. Click here to read more about Separate Support and Maintenance in South Carolina.

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