Some states use the terms "abandonment" and "desertion" interchangeably to describe the act of one spouse leaving the other. However, South Carolina mentions only desertion in the state's divorce laws. Abandonment does not meet the state's legal requirements to serve as fault grounds for divorce unless the abandonment qualifies as desertion. In a fault-based divorce, South Carolina divorce laws allow desertion to affect each spouse's rights regarding property, alimony and child custody.
Grounds for Divorce
South Carolina allows both no-fault and fault-based divorce. A no-fault divorce does not require either spouse to prove the other spouse's misconduct or fault in ending the marriage; rather, either spouse may simply explain that the couple has separated for at least one year. In a fault-based divorce, one spouse must prove that the other party engaged in misconduct or caused the breakdown of the marriage. South Carolina laws recognize spousal desertion as one of the fault grounds for divorce. To obtain a divorce based on desertion, the spouse seeking a fault-based divorce must show that the period of abandonment lasted for at least one year.
Fault-Based Divorce and Financial Rights
In South Carolina, the period of separation required for a no-fault divorce is the same as the period of desertion required for a fault-based divorce: one year. However, an abandoned spouse may gain a more favorable position in the divorce by establishing fault grounds such as desertion. For example, South Carolina divorce laws specifically allow the state courts to look at each spouse's marital misconduct or fault when determining the issues of alimony and property division. Accordingly, an abandoned spouse may likely receive a more advantageous court order for alimony or for the division of property than the spouse who abandoned the household. An abandoned spouse might also be able to use marital fault as a reason for the court to order the payment of legal fees by the other party.
Abandonment and Custody Rights
If a married couple has children, the spouses must generally negotiate custody issues during divorce. Abandonment reflects badly on the spouse who abandoned the family — as a result, the abandoned spouse will likely gain a more favorable position in a custody dispute. South Carolina custody laws require a review of the children's best interests if parents disagree regarding their custody arrangement. To determine a child's best interests, the state courts must apply a number of custody factors, including the child's relationship with each parent and the child's ties to a particular home, school or community. A child likely does not have the best relationship with a parent who abandoned the family for a significant period of time. Based on the state's custody factors, a court is likely to decide that the child's best interests require custody in favor of the parent who did not abandon the family.
Abandoned Spouse and Divorce Procedures
Abandonment by a husband or wife may affect the procedures used by the abandoned spouse when filing for divorce in South Carolina. Under state law, some couples may qualify for a self-represented litigant simple divorce — this type of divorce generally does not require a lawyer and allows spouses to avoid a lengthy contested trial. However, spouses cannot qualify for a simple divorce if they have marital assets and debts but cannot agree on how to divide them. Similarly, spouses cannot get a simple divorce if they have children together but cannot reach an agreement on custody. Accordingly, an abandoned spouse may not be able to start a simple divorce if the other party is absent or refuses to negotiate a divorce agreement; under these circumstances, the abandoned spouse may need to consult with a South Carolina attorney who practices domestic relations law.
References & Resources
- South Carolina Bar: Divorce
- South Carolina Legislature: South Carolina Code of Laws: Title 20 -- Domestic Relations
- South Carolina Bar: Custody of Minor Children Resulting From Divorce or Separation
- South Carolina Judicial Department: Instructions for Completing the Self-Represented Litigant Simple Divorce Packet
- Divorce Source: Divorce Process: Abandonment and Desertion in Divorce
- South Carolina Appleseed Legal Justice Center: Marriage and Divorce
- South Carolina Bar: Children and the Law
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