Does Fault Play a Role in the Divorce?

Today, most divorces are “no-fault,” where the spouses mutually agree to live apart before seeking a dissolution of their marriage. But traditionally, the law only permitted divorce when a court determined one party was at fault in some way. South Carolina law still recognizes four grounds for a “fault” divorce.


If one spouse engages in extramarital sexual activity, the other spouse may ask for a divorce on grounds of adultery. South Carolina courts rely on the common law definition of adultery, which is “the illicit intercourse of two persons, one of whom, at least, is married.” Unless the accused spouse admits the adultery, the legal burden is on the accusing spouse to prove it occurred. If the court grants a divorce on grounds of adultery, the cheating spouse is not entitled to any alimony or support payments under South Carolina law.


If one spouse simply walks out on the marriage, the other spouse may seek a divorce on grounds of desertion (sometimes called “abandonment”). As with a no-fault divorce, the deserted spouse must wait at least one year before taking action. The mere absence of a spouse is not necessarily desertion. The parties must be living separately, and the deserting spouse is not paying any maintenance or support to the other spouse. In some cases, South Carolina courts recognize “constructive desertion,” where a spouse is forced to leave because the other spouse has engaged in conduct that would in and of itself be grounds for a fault divorce.

Physical cruelty

Domestic violence is a serious problem that affects too many marriages. But for purposes of divorce, it is important to understand “physical cruelty” does not apply to every single act of violence that may occur between spouses. If a couple argues and one spouse slaps the other, for example, that would probably not rise to the level of physical cruelty. South Carolina courts consider physical cruelty a ground for divorce when there is “actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe.” Physical cruelty may encompass a single violent act. However, the courts will consider whether the complaining spouse provoked a physical response, and whether that response was proportional to the provocation.

Habitual drunkenness

Alcohol and drug abuse may be grounds for divorce when one spouse routinely gets drunk or high. This does not mean a spouse can seek a fault divorce on the grounds his or her partner is an alcoholic or drug addict. Nor must a complaining spouse prove the other spouse is drunk all the time. Rather, the test for the courts is whether or not a spouse’s habitual drinking or drug use leads to the irretrievable breakdown of the marriage.

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