Five Legal Grounds for Divorce in South Carolina (And What They Really Mean)

Five Legal Grounds for Divorce in South Carolina (And What They Really Mean)

When you are thinking about ending a marriage, the last thing you want to do is learn a new legal vocabulary. But in South Carolina, you must fit your situation into one of five legal “grounds” before the court can grant you a divorce.

Unlike some states, South Carolina does not recognize “irreconcilable differences” or “we just grew apart” as a standalone ground for divorce. Instead, our law uses four fault‑based grounds and one no‑fault ground.

In this post, I will walk through each of the five grounds in plain English and explain how they might affect your case.  When you are married, I consider the grounds for divorce the “keys to the courthouse”.  In other words, the ground is the vehicle for getting your case before the judge.  

The five grounds for divorce in South Carolina

South Carolina law allows a divorce on only these five grounds:

• Adultery;

• Living separate and apart without cohabitation for one year (the no‑fault ground);

• Habitual drunkenness, which includes habitual use of narcotic drugs or similar substances;

• Physical cruelty; and

• Desertion for one year.

The court only needs to find that one of these grounds applies in order to grant a divorce. Even so, the facts behind the ground you choose can also affect issues like alimony and sometimes property division.

Ground #1: Adultery

What counts as adultery?

In South Carolina, adultery means there was opportunity and romantic motive for sexual interaction between a married person and someone who is not their spouse. It does not matter whether the affair is heterosexual or homosexual; the key is that one of the people involved is married to somebody else.

Courts understand that affairs rarely happen out in the open which means you almost never have a witness who walks in at the exact moment of sex.  So, it is most often proven through the use of circumstantial evidence. 

How is adultery proven?

Because adultery usually happens in secret, it is often proven with circumstantial evidence. The court looks for two things:

• Inclination: signs of a romantic or sexual relationship, such as text messages, emails, social media messages, photos, or very affectionate behavior in public.

• Opportunity: proof that the spouse and the other person had time together in private where sex could reasonably have happened, such as staying overnight in the same home or hotel room.

You do not need direct eyewitness proof as long as the judge is convinced, by a preponderance of the evidence, that adultery occurred.

A common example looks like this: your spouse sends flirtatious or explicit messages to someone, is seen going into that person’s home late at night, and does not leave until the morning. If you or a private investigator can document that pattern, a judge can find adultery even without bedroom photos.

Why adultery matters so much for alimony and timing

Adultery is not just about blame. It can have major financial consequences.

Under South Carolina law, a spouse who has committed adultery before certain key points in the case is completely barred from receiving alimony. If the court finds that a spouse committed adultery before:

• The formal signing of a written property or marital settlement agreement, or

• The entry of a permanent order of separate maintenance and support, or a permanent order approving a property or marital settlement agreement,

then that spouse cannot receive alimony at all.

Adultery can also affect the timing of your divorce. You do not have to wait for a full year of separation to file on adultery; you can file as soon as the ground exists, and the court can grant a divorce on fault grounds after a minimum 90-day waiting period from the date you started the action.

Because the stakes are high, if you think adultery may be involved in your case, you should talk with a lawyer before confronting your spouse or gathering evidence on your own.

Ground #2: One‑year separation (no‑fault)

The only no‑fault ground in South Carolina

South Carolina has one no‑fault ground for divorce: the spouses must live “separate and apart without cohabitation” for one continuous year.

That usually means:

• You live in separate residences.

• You do not sleep together or move back in together during that year.

• You present evidence (often a witness) who can truthfully say that you have lived apart without cohabitation for at least one year.

Short visits for child exchanges or brief contact at events do not necessarily break the separation. But if you move back in or resume a full marital relationship, you may have to restart the one‑year clock.

Why many people choose the separation ground

Many people in the Upstate choose the one‑year separation ground because:

• It avoids publicly airing fault allegations in court, which can reduce conflict.

• It may be easier to prove than fault grounds like adultery or physical cruelty.

• Once the year has passed and the other spouse has been properly served, the court does not have to wait the extra three months that applies to most fault‑based divorces.

One important point: even if you use the no‑fault ground, the court can still consider fault (like adultery or substance abuse) when deciding alimony and property division.

Ground #3: Habitual drunkenness (including drug abuse)

What “habitual drunkenness” means in practice

Habitual drunkenness does not mean one rough weekend or occasional social drinking. To qualify as a ground for divorce, the substance use must:

• Be habitual – a pattern of frequent intoxication or impairment, not an isolated incident.

• Exist at the time of the separation or filing, not just years earlier.

• Contribute to the breakdown of the marriage.

The statute expressly includes habitual drunkenness caused by the use of narcotic drugs or similar substances, so it is not limited to alcohol.

Common types of evidence

Evidence can include:

• DUI or drug‑related criminal charges.

• Rehab or treatment records, if available.

• Testimony from friends, family, neighbors, or older children about repeated intoxication, blackouts, or being unable to care for the children.

• Financial records showing large, unexplained spending on alcohol or drugs.

• Photos or videos of your spouse drinking, under the influence, and empty containers.

You do not need all of these, but you do need enough to show a consistent pattern and its impact on the marriage.

Why this ground matters in custody cases

Even if you do not base your entire divorce on habitual drunkenness, serious alcohol or drug problems will almost always matter in custody and visitation decisions. The family court’s focus is the best interests and safety of the children, and a parent’s ongoing impairment can affect overnights, supervision requirements, and other conditions of visitation.

Ground #4: Physical cruelty

More than just arguments

Physical cruelty is about violence or serious threats of bodily harm, not just frequent arguments or hurtful words. The courts generally look for:

• Actual physical violence (hitting, choking, pushing down stairs, etc.), or

• Conduct that creates a reasonable fear of serious bodily injury.

Verbal and emotional abuse can be very real and harmful, but on their own they usually do not satisfy the legal standard for “physical cruelty” in South Carolina.

One incident vs. a pattern

A single act can sometimes be enough if it is serious enough. For example, a severe beating, choking, or assault with a weapon may justify a divorce on physical cruelty even if there was no long history of similar behavior.

Less severe acts may require proof of a pattern or escalation, especially if there are no police reports or medical records.

Types of proof

Evidence in physical cruelty cases often includes:

• Police incident reports, 911 call logs, or criminal charges.

• DSS records where there is overlap with child safety concerns.

• Medical records or photos of injuries.

• Testimony from neighbors, relatives, or others who witnessed the abuse or its aftermath.

If you are in immediate danger, your safety is more important than the legal label. You may need to seek an order of protection or emergency relief, then talk with a lawyer about how that evidence fits into a divorce case.

Ground #5: Desertion for one year

What desertion means

Desertion occurs when one spouse leaves the marital home:

• Without the other spouse’s consent,

• Without legal justification, and

• Stays away for at least one year.

The leaving spouse must intend to end the marital relationship. Simply living separately by agreement or for work reasons is usually not enough.

Why desertion is less common today

Desertion used to be a more important ground. Since the one‑year separation ground was added to the law, many situations that might have been called “desertion” are now handled as no‑fault divorces based on one‑year separation.

Still, desertion can arise when a spouse walks out with no agreement, cuts off contact, and does not contribute to the household or children for a long period of time.

How to think about grounds in your case

For most people, the key questions are not only “Can I get a divorce?” but:

• “How long will it take?”

• “How will this affect my alimony, property, and custody issues?”

• “What evidence will I have to put in front of a judge?”

Using a fault ground like adultery, physical cruelty, or habitual drunkenness can sometimes speed up the divorce and send a strong message about why the marriage ended, but it also usually requires more evidence and can increase conflict and cost.  Additionally, just because it is possible to complete a divorce in 90 days when filing on a fault-based ground, that does not mean the divorce will be accomplished in that time period.  If there are any contested issues, it is likely to take much longer to complete the other formal processes in the case. 

Using the one‑year separation ground can lower the temperature and keep the focus on practical issues like custody schedules, support, and dividing property.

Even when you move forward under the no‑fault ground, the judge can still consider the other spouse’s misconduct when deciding things like alimony and, in some cases, how to fairly divide marital property.

Talk with a local family law attorney about your options

If you live in Greenville, Anderson, Spartanburg, Pickens, or the surrounding Upstate area and are unsure which ground for divorce fits your situation, you do not have to figure it out by yourself. The right choice depends on the facts of your marriage, your children’s needs, your safety, and your financial goals. You can use the link on this site to schedule a consultation and talk through your options with Tripp Atkins, South Carolina family law attorney who regularly handles divorce and custody cases in the Upstate.

Foster Parents as Advocates: Fighting for What's Best for the Child

It is the goal and policy of the South Carolina Department of Social Services to attempt to reunite a child with his or her birth family after being separated due to abuse or neglect. You may be a foster parent who has placement of a child that you don’t believe would be served by being reunited with their birth family.

A few years ago, I represented foster parents through a horrific situation with DSS. On a warm fall evening they two sisters into their home. One child about a year old. The other only a few weeks old. When the children came into their care they were filthy. The oldest child could not yet walk, though she stood bow-legged because she spent almost all of her waking hours in a child’s bouncy seat. For two years they cared for these children as DSS gave the birth parents chance after chance to get things right. DSS blamed the foster parents for the delay because of their desire to maintain custody and to adopt the children. While I believe in the process to reunite families, this case was clear that the birth parents were never going to get their act together. They had few parenting skills or instincts, lacked life skills despite completed parenting classes, and could not stay off of drugs.

DSS ignored our warnings and calls to reconsider and the parents went from supervised visits, to unsupervised daytime visits, to weekend visits and ultimately sought a return of the children. DSS continued to push towards reunification though the signs were there that the birth parents had not improved their situation and were not ready for custody of the children to return. We tried a two day contested permanency planning hearing where the family court determined the parents had sufficiently remedied the conditions that initially led to the removal of the children by DSS. That day, my clients’ hearts broke as they returned those two little girls back to their birth parents. At that time, the children had spent about 80% and 90% of their lives with my clients. They were the only parents they knew. And just like that they were gone. Traumatized again and returned to their birth parents - who were all but strangers. But, the Court made sure there was a long review period where DSS had to keep up with the family before closing the case.

The story does not end there. Prior to the return in the DSS we had also filed a private termination of parental rights and adoption action seeking privately what DSS would not. In this case we had another Guardian ad Litem who was also investigating. We continued to observe and keep tabs on the children. Until another report was made to DSS. This time with medical concerns for the children. This time the Court found it appropriate to return the children to my clients in the private action. Now, they were the legal custodians.

More investigation ensued and another two day trial followed. We learned that shortly after the children were placed by with the parents, there were failed drug screens. The house was filthy again, and the children were not well taken care of.

Ultimately (and thankfully), these foster parent clients were able to adopt these two children. After three years of fighting, litigating, investigating, appeals, and untold expense, this family was created.

Can I Sue DSS for foster care abuse?

I have represented hundreds of clients with DSS abuse and neglect allegations. Clients almost never have a positive experience with the Department of Social Services. That is understandable. A government agency has come into their home and either threatened to remove or has removed their children. And, this is a traumatic experience for the children, parents, and other family members to have the family separated in this way. Sometimes, there are valid reasons for DSS involvement in a family. And DSS has a difficult job of working to preserve family bonds, provide necessary services to these families, and protect the children in their care, sometimes they just don’t do a good job.

Many clients ask me if they can sue DSS for the interference in their lives. Typically, a governmental agency is immune from most actions. That means they cannot be sued in most cases. So, the removal of your children is not necessarily a reason DSS can be sued. The South Carolina Tort Claims Act, S.C. Code § 15-78-60(25), permits lawsuits for gross negligence committed by a state agency.

The most common way for people to recover from DSS is for injuries or abuse to children while they are in foster care. Children can be injured in foster care in a number of ways: they may be assaulted physically or sexually, raped by adults or other children in the home, having food withheld, having to live in unsafe and unsanitary living conditions, neglect of appropriate medical treatment, care, or medications, neglect of emotional or mental healthcare, not being seen regularly by their caseworkers who have excessive caseloads, cruel or unusual punishment or discipline by foster parents, or even death.

Abuse in foster care can be physical, mental, social, or emotional. A child may suffer physical injuries like broken bones, brain trauma, cuts, bruising, and internal organ damage. They may have mental injuries, including anxiety, a decline in school performance, avoidance of social situations, and other harm.

What is Gross Negligence?

"Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do." Etheredge v. Richland Sch. Dist. One, 341 S.C. 307, 310, 534 S.E.2d 275, 277 (2000) (citing Clyburn v. Sumter Cnty. Dist. Seventeen, 317 S.C. 50, 451 S.E.2d 885 (1994); Richardson v. Hambright, 296 S.C. 504, 374 5.E.2d 296 (1988)). In other words, "[i]t is the failure to exercise slight care." Id. at 310, 534 S.E.2d at 277 (citation omitted). "Gross negligence has also been defined as a relative term, and means the absence of care that is necessary under the circumstances." Id. (citing Hollins v. Richiand Cnty. Sch. Dist. One, 310 s.c. 486, 427 S.E.2d 654 (1993)). Normally, the question of what activity constitutes gross negligence is a mixed question of law and fact. Id. However, "when the evidence supports but one reasonable inference, the question becomes a matter of law for the court." Id. (citation omitted). Bass v. S.C. Department of Social Services, 414 S.C. 558, 2015).

Still have questions?

If you would like to schedule a time for us to discuss a potential lawsuit against DSS, please fill out this informational form.

What is Discovery?

Discovery in a lawsuit is the process by which both parties in a legal case obtain information and evidence from each other. This information can include documents, witness testimony, and physical evidence.

The purpose of discovery is to allow each party to gather the necessary information and evidence to build their case and prepare for trial. It is an important part of the legal process because it helps to ensure that both sides have access to all relevant information and evidence, which promotes fairness and transparency in the legal system.

Discovery can take many forms, including written requests for documents, depositions, and requests for admissions. The specific rules and procedures for discovery vary depending on the jurisdiction and type of case, but generally, both parties are required to disclose all relevant information and evidence that they have in their possession or control.

In South Carolina, the discovery process is governed by the South Carolina Rules of Civil Procedure. Rule 26(b)(1) of these rules states that, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Discovery can be a lengthy and complex process, but it is essential for ensuring that each party has a fair opportunity to present their case and that the court has all the necessary information to make a well-informed decision.

What age can I leave my child at home alone in South Carolina?

There is no specific law in South Carolina that sets forth an allowable age for leaving children home alone. This is certainly a very individualized issue and can be fact specific for each family.

Since there is no “bright line” to tell you when you should leave your child at home alone, I suggest you consider the following in deciding whether it is appropriate for YOUR child to be left home alone:

1. Does the child know how to use the telephone to contact you, or someone else close by if there is an issue?

2. Does the child have access to a telephone to be able to do this?

3. Does the child know what to do if someone comes to the door?

4. Is the home otherwise safe of danger (e.g. no dangerous weapons or items within reach or that could accidentally harm the child)?

5. How mature is your child?

6. Will the child be expected to cook a meal?

7. How long will the child be left alone?

8. Is the child responsible for other children in the home?

What should you be concerned about?

Since each case is evaluated on its own, it is best to know what can happen if this becomes an issue? You should be especially cognizant that allegations that a child has been left at home alone can be used against a parent in a custody action or in a DSS child abuse/neglect investigation. Worse that than, there are also criminal charges that can flow from this in egregious circumstances.

SC Code §63-5-70 says that it is unlawful for a parent to “place the child at unreasonable risk of harm affecting the child's life, physical or mental health, or safety” and that a conviction of this charge is a felony that could result in up to 10 years in prison for each count.

Not only that, but DSS may seeking findings against a parent who is neglectful based on the specific circumstances of the case.

What to expect when I meet with my divorce lawyer

There are several important things you should consider asking your divorce attorney. Some of the key questions to ask include:

1. What are my legal options and what are the potential outcomes of each option?

2. How will my assets, debts, and income be divided during the divorce process?

3. How will child custody and support be determined?

4. How will spousal support (also known as alimony) be decided?

5. How long will the divorce process take, and what are the costs associated with it?

6. How will we communicate and how often can I expect updates on the case?

7. Do you have experience with similar cases to mine, and what were the outcomes?

8. How do you plan to handle negotiations with my spouse and their attorney?

9. How will you ensure that my rights and interests are protected throughout the divorce process?

It's important to remember that every divorce is different, and your attorney will be able to provide specific guidance based on your individual circumstances. It's also a good idea to bring any documents or information related to your marriage, assets, and debts to your initial consultation with your attorney.

How do I establish paternity and custody?

Question: How do I establish paternity and custody for my daughter? Me and the child's mother have fallen out a long time ago but she is still living in my home. I would like to establish paternity and custody before I separate from the mother.

You have a few options to establish paternity in South Carolina:

(1) if you are both in agreement and want to establish paternity you can complete the Paternity Acknowledgement Affidavit at either S.C. Department of Health and Environmental Control (DHEC) or the county health department in the county where the child was born.  There is usually a small fee charged (around $15). 

(2) If the mother will not agree you can go to the DSS child support enforcement office in your county and  fill out a Non-Custodial Parent Application for Services (available at DSS child support offices) and pay a $25 processing fee .  DSS will then schedule a paternity test.  If you are the father DSS will certify paternity and schedule a conference to determine a child support obligation. 

(3) you can retain a lawyer to file an action in Family Court to determine paternity and seek an order related to custody, visitation, and support of the child.  Once paternity is established the Court can address custody, visitation, and support. 

Does the Family Court Have to Consider Expected Increases in Value of Assets when determining Alimony

Alimony is one of the most challenging issues to advise clients about in their divorce cases. SC Code Ann. Section 20-3-130(C) sets forth the 13 factors that the Family Court judge must weigh in determining whether to award alimony. But, once the Family Court has determined that alimony is appropriate to order in a particular case there is no guidance on the amount.

The South Carolina Supreme Court addressed an issue related to alimony in its opinion that was issued on March 20, 2019 in Sweeney v. Sweeney.

This case deals with a very specific issue about whether there should be a requirement for the Family Court judge to assign a specific value to a party's investment income when determining an alimony award. This clarifies one of the alimony factors found in S.C. Code Ann. Section 20-3-130(C)(6), "the current and reasonably anticipated earnings of both spouses" by examining what level of specificity is needed to be considered by the Family Court when evaluating the "reasonable anticipated earnings" of a spouse.

The Court specifically framed the issue as determining whether there should be a requirement for the Family Court Judge to consider the expected increase in value of a party's assets in determining alimony awards.

In Sweeney, Husband and Wife were married nearly 30 years. At the beginning of the marriage, Wife supported Husband as he earned his Masters Degree. Later in the marriage he began a consulting business which became successful enough for the family to be financially secure and for Wife to no longer need to work and remain home caring for the children. More specifically, Husband's gross monthly income was in excess of $30,000.

For the lawyers out there that want to know about the other alimony factors the Family Court considered, let's dive in: (1) parties were married nearly 30 years, (2) Husband's adultery contributed to the breakdown of the marriage - though Husband alleged that his affair did not begin until after the parties separated and had been having marital difficulties, (3) the parties enjoyed a well above-average lifestyle, and (4) Husband has the ability to pay alimony.

In the trial of the case, Husband's financial expert presented evidence that alimony was unnecessary in this case because Wife will be receiving a significant sum in equitable apportionment and this sum - a large amount of investments - will provide wife a substantial income each month in excess of her reported living expenses. Wife's expert disputed the claim and alleged that investment income from the investments should not be considered in the calculation of support because it was too speculative and Wife would have to invade the principal of the investments to maintain her lifestyle while Husband would not have to invade his portion of the assets.

The Family Court ordered $5,000 per month in alimony even though Wife "would receive substantial income from her share of the assets" though it did not specify or estimate how much "substantial income" would be.

The Supreme Court reviewed the record along with the statutory alimony factors and considered the Family Court's review of the factors and declined to require Family Court judges assign a specific number to future investment income of the parties when considering alimony awards.