Area of Law:
Divorce may be defined as the legal termination of a marriage. Married couples do not have a legal or a constitutional right to seek a divorce, but states such as South Carolina commonly grant divorces because forcing a couple to stay married would be against public policy.
In the United States, "no-fault" and "fault" are the two types of grounds, or justifications, for divorce. In some states, no-fault is the only acceptable justification for a divorce, even if fault grounds exist within the marriage. Other states, including South Carolina, allow the parties to select either a no-fault or a fault divorce. The Cornell University Law School website, law.cornell.edu, gives a comprehensive overview of divorce and separation law in the United States.
The United States first adopted the concept of a no-fault divorce in the late 1960's, and nearly all of the states currently allow for some form of it. A no-fault divorce is one in which the parties do not legally fault, or blame, each other for the divorce. Some examples of the justifications for a no-fault divorce include “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.” One spouse cannot usually stop a no-fault divorce, simply because when one spouse wants a divorce and the other spouse does not, this constitutes irreconcilable differences, which justifies a no-fault divorce. In South Carolina, the no-fault justification for a divorce is living separate and apart for one continual year.
Many states require a "cooling-off" period of separation for a specific period of time before no-fault divorce proceedings can begin. During this time, the couple is required to live separate and apart with the intent that the separation will become permanent. The duration of the cooling-off period varies according to state law. In South Carolina, the divorce decree cannot be entered until three months after filing unless the divorce has been sought on the grounds of separation or desertion.
Some states also permit fault grounds for divorce. Common fault grounds may include cruelty, desertion, adultery, prison confinement, habitual intemperance (drunkenness or drug addiction), and impotency. In South Carolina, the fault grounds for divorce include adultery, cruelty or violence, desertion for one year, and drug or alcohol addiction.
There are several “defenses,” or denials, that are sometimes used pertaining to fault divorces, including the following: collusion, connivance, condonation, and provocation. In South Carolina, collusion is allowed as a defense to divorce. Collusion may be committed by a couple who does not want to wait the separation period that is mandatory in their state and instead attempts to falsely manufacture fault grounds for the divorce. For a complete text of South Carolina divorce law, go to divorcelawinfo.com.
Defenses to divorce, such as collusion, are not used often, perhaps because they require witnesses and additional court time, which is expensive and can drag out the divorce. Another reason may be that even if the defense is proven, South Carolina courts may still grant the divorce rather than require the couple to remain married when at least one spouse does not wish to do so.
Divorce laws in general, as well as the specific grounds required for divorce vary widely across the United States. The American Bar Association provides a variety of information regarding divorce requirements state by state on their Section of Family Law website. A chart comparing all 50 states can be found at abanet.org.
*An example of a South Carolina Divorce Settlement Agreement can be seen on Free Legal Aid.