How Do We Prove the No Fault Divorce Ground: Continuous Separation for Over 1 Year
Question: My wife and I have lived apart for over ten months but the first 6 months she lived with her mother, the last four months she has owned her own home. We both want a simple divorce, how do we account for the first 6 months of separation?Answer: The South Carolina Code of Laws sets forth five grounds for divorce in South Carolina in §20-3-10. Sub-paragraph (5) is the provision for the no-fault ground as follows, "on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year."The law essentially only requires living apart from one another for greater than one year. Our appellate courts have identified some things that do not qualify as living "separate and apart" such as one spouse moving out of the marital bedroom and sleeping in the basement or the couch in the den. Likewise, living in an RV in the backyard would also not be living separate and apart.Your case is different. You did separate and your wife moved into her mother's home for the first six months of separation and later she purchased a home of her own.In a hearing for divorce on this ground the evidence is typically the testimony of a witness who has a good relationship with one or both of the parties who can corroborate that you have lived apart for more than one year and have not resumed cohabitation during that time. So, in your case, perhaps her mother could testify that your wife moved in with her for six months and then moved into her own home. She could go on to testify that when your wife moved out of her home she moved into a new home of her own and she keeps up with her daughter on a regular basis and is confident that the two of you have not resumed cohabitation.
Adultery: What Proof is Required
One of the most common threats I discuss with prospective clients is framed in one of two ways:
- What do I need to be able to show to prove my spouse is having an affair? or,
- My spouse is threatening to file for divorce on adultery grounds, can he/she do that?
When this is the case, my initial instinct is to believe that the proof of such an affair is thin at best or non-existent at worst. Perhaps a the prospect has caught the spouse engaging in an "emotional affair" with an old classmate on Facebook that expands into text messages or telephone calls or maybe it is a internet pornography addiction.So what level of "infidelity" is required to substantiate a divorce on the ground of adultery in South Carolina?South Carolina law requires that the spouse seeking a divorce on the ground of adultery to show their spouse had the (1) inclination (or motive) to have an affair and the (2) opportunity to have an affair. Inclination can be proven by showing the text messages, telephone calls, dates, public displays of affection, and so forth. But that isn't enough. We must also show that the offending spouse had the opportunity to complete the affair. In our fact patterns above, our proof of opportunity is lacking. While there may be some bad behavior going on, there isn't proof of an affair.The other side of the coin is this: the law doesn't care what your spouse was doing while they were alone with their girlfriend/boyfriend, as long as they were alone for a time long enough for the affair to occur.