At-Fault Divorce in South Carolina: Grounds, Proof, and Alimony

An at-fault divorce in South Carolina is a divorce granted because of a spouse’s misconduct rather than a one-year separation. The state recognizes four fault grounds — adultery, physical cruelty, habitual drunkenness or drug use, and desertion for at least a year — and filing on any of them lets a case reach a final decree as early as three months after the complaint is filed. Proving fault can also permanently change what the court orders on alimony and property division, which is why these cases are worth the extra effort to prove.

The Four Fault Grounds

South Carolina’s divorce statute lists the specific misconduct that qualifies for a fault-based filing.¹

Adultery is carnal intercourse between a married person and someone who is not their spouse.² Courts do not require direct proof of a sexual act; circumstantial evidence is enough.

Physical cruelty means actual violence or threats that endanger a spouse’s life or health. One heated argument generally will not qualify. The court looks for conduct severe enough that staying in the home was unsafe.

Habitual drunkenness covers a pattern of alcohol or narcotic drug use frequent enough to break the marriage down. One bad night will not do it. The court wants to see a fixed habit that caused real domestic or financial harm.

Desertion requires one spouse to leave the marital home for a continuous year without the other’s consent and without justification, with no intent to return. Because desertion already needs a full year of absence, it offers no real speed advantage over the no-fault path.

How Adultery Is Proved

Adultery deserves its own treatment because the proof standard is unusual. Since the act itself happens in private, South Carolina courts use a two-part test: the filing spouse must show both inclination and opportunity.

Inclination is evidence that a romantic or sexual relationship existed. Text messages, emails, dating app profiles, affectionate photos, and even an emotional affair can show it. Sexting is not adultery by itself, but it is strong evidence of inclination.

Opportunity means the spouse and the other person were alone in a private setting long enough for a sexual encounter to happen. Surveillance photos or video of both people entering and leaving the same hotel room or home are the classic proof. Credit card statements for hotel stays, neighbor testimony, and admissions in text messages also work. A court once found adultery based on a spouse sharing a cruise ship cabin with someone else, despite the spouse’s denial.

You do not need a confession or a photo of the act. You do need both halves of the test. Flirty texts without opportunity are not enough, and two people alone in a house without any evidence of inclination are not enough either.

Corroborating Your Grounds

A South Carolina judge will not grant a fault-based divorce on the filing spouse’s testimony alone. Independent corroboration is required. The family court rules refer to “corroborating witnesses” who speak to jurisdiction and to the grounds.³ At least one outside source — a witness, document, or record — has to confirm your claim.

What that looks like depends on the ground:

For adultery: private investigator surveillance, hotel receipts, text messages or emails showing a romantic relationship, photographs, and testimony from friends or neighbors.
For physical cruelty: medical records from treatment of injuries, police reports, photographs of injuries, and testimony from people who witnessed the violence or its aftermath.
For habitual drunkenness or drug use: financial records showing excessive spending on alcohol or drugs, DUI or drug arrest records, testimony from family or friends about the pattern, and treatment program records.
For desertion: testimony from someone who knows the spouse left and has not returned, lease or utility records showing the departing spouse set up a separate residence, and written communications confirming the departure was intentional.

Gather this material before you file. Weak corroboration is where fault-based cases fall apart, and opposing counsel will press any gaps.

Defenses the Other Spouse Can Raise

Filing on fault grounds does not guarantee a divorce. The defendant has four recognized defenses, and any of them can defeat the claim.

Collusion. If both spouses coordinated to manufacture grounds, the court must deny the filing. The statute is explicit: a judge cannot grant a divorce when the misconduct was done with the filing spouse’s knowledge or agreement for the purpose of obtaining the divorce.⁴

Connivance. Similar to collusion but involves one spouse scheming. If the filing spouse consented to or facilitated the misconduct they now complain about, that can be a complete defense. Setting up a situation to entrap the other spouse is the textbook example.

Condonation. Forgiveness of the misconduct. If you learned about an affair and then resumed the full marital relationship, a court may find you condoned it. The defense is conditional: if the offending spouse commits new misconduct, the original forgiven conduct can be revived as a ground.

Recrimination. The defendant shows the filing spouse also committed conduct that would independently qualify as grounds. If both spouses committed adultery, a fault-based case may be denied. One important limit: South Carolina’s statute says recrimination cannot block a no-fault divorce based on one-year separation, so either party can still take the no-fault route.¹

These defenses matter most for alimony. Even if recrimination blocks the fault case, a spouse who committed adultery can still lose alimony rights regardless of who filed first.

Residency and the Three-Month Clock

Before the Family Court will hear your case, you have to meet the residency rule. If only one spouse lives in South Carolina, that person must have been a resident for at least one year before filing. If both spouses live in the state, the requirement drops to three months.¹ Active-duty military members stationed in South Carolina satisfy residency through continuous presence, regardless of whether they consider the state their permanent home.

Once filed, no evidence hearing can take place for at least two months, and no final decree can be entered for at least three months after filing.⁵ The clock runs from the filing date, not the service date. That three-month floor is the procedural payoff of a fault case: the alternative, no-fault separation, takes a full year.

Filing the Summons and Complaint with the Clerk of Court costs $150.⁶ The complaint has to identify the specific fault ground, the marriage date, the separation date, the names of any minor children, and enough facts about the misconduct for the court to evaluate it. The other spouse is then served personally; if they genuinely cannot be found after diligent search, the court can authorize service by publication for three consecutive weeks.⁷

How Fault Changes Alimony

Fault carries its heaviest consequences in alimony. South Carolina imposes an absolute bar: a spouse who committed adultery before either the formal signing of a written settlement agreement or the entry of a permanent support order cannot receive alimony of any kind.⁸ The bar applies regardless of financial need or the length of the marriage. That makes adultery the single most consequential fault ground in the state.

The other fault grounds do not create an automatic bar, but they still matter. Marital misconduct is one of 13 statutory factors courts weigh when setting the amount and type of alimony, provided the misconduct affected the couple’s economic circumstances or contributed to the breakup. A spouse who drained family savings through substance abuse, for example, can see an alimony claim reduced on that basis. South Carolina courts can award periodic, lump-sum, rehabilitative, or reimbursement alimony, and a judge can combine more than one type in the same case.⁸

How Fault Changes Property Division

South Carolina divides marital property through equitable distribution, meaning fair but not necessarily equal. The court weighs 15 statutory factors, and marital misconduct is the second one listed.⁹

Fault moves the property split only when it affected the couple’s finances or contributed to the breakup. An affair by itself will not necessarily shift the division. An affair that involved spending marital funds on gifts, trips, or a second household almost certainly will. A spouse who depleted savings through drug or alcohol abuse faces the same kind of adjustment.

The statute also cuts off what the court can consider. Misconduct that happened after the earliest of these events is legally irrelevant to property division: entry of a temporary order in the divorce case, formal signing of a settlement agreement, or entry of a permanent support order.⁹

Fault and Child Custody

Custody turns on the best interests of the child, not on who was at fault in the marriage. An affair, standing alone, does not cost a parent custody. When the fault ground involves violence or substance abuse, though, it feeds directly into the custody analysis.

Courts must give weight to evidence of domestic violence in custody decisions.¹⁰ If a parent who was a victim of domestic violence left the home, the court cannot use that absence against them. On the other side, a parent found to have committed domestic violence can receive visitation only if the court can ensure the safety of the child and the other parent. The court can require supervised visits, exchanges in a protected setting, completion of an intervention program, no alcohol or drugs during and for 24 hours before visitation, no overnight visits, or a bond to guarantee the child’s return. In severe cases, a judge can prohibit visitation entirely.

Fault-based divorce is more work than no-fault, and the proof requirements are strict. For a spouse who can corroborate what happened, the trade is a faster timeline and a real chance to influence what the court does with support and property.

1
South Carolina Legislature. South Carolina Code 20-3-10 – Grounds for Divorce
2
South Carolina Legislature. South Carolina Code 16-15-70 – Adultery Defined
3
South Carolina Judicial Branch. Rule 28 – Granting Certain Relief Without a Hearing
4
South Carolina Legislature. South Carolina Code 20-3-20 – Effect of Collusion
5
South Carolina Legislature. South Carolina Code 20-3-80 – Required Delays Before Reference and Final Decree
6
South Carolina Judicial Branch. Family Court – Court Fees
7
South Carolina Judicial Branch. Rule 4 – Process
8
South Carolina Legislature. South Carolina Code 20-3-130 – Award of Alimony and Other Allowances
9
South Carolina Legislature. South Carolina Code 20-3-620 – Apportionment Factors
10
South Carolina Legislature. South Carolina Code Title 63 Chapter 15 – Child Custody and Visitation