Grounds for Divorce
One of the most common cases family law practitioners are presented with is an action for divorce. The first step is to determine if grounds exist for the divorce. The grounds for divorce in S.C. are (1) adultery; (2) desertion for a period of one year; (3) physical cruelty; (4) habitual drunkenness; including the use of any narcotic drug; and (5) when the husband and wife have lived separate and apart without cohabitation for a period of one year.
The next step in obtaining a divorce in South Carolina is establishing jurisdiction. There are a couple of ways to establish jurisdiction.
1. If one of the parties has lived in S.C. for one (1) year before filing for divorce;
2. If both parties have lived in S.C. for three (3) months before filing for divorce. (SC Code 20-3-10)
Active Duty Military: If the service member has been continuously in S.C. for the requisite time, regardless of intent to permanently remain in South Carolina.
SIDEBAR: What do you mean I have to move out!?!?!
One of the grounds for divorce in S.C. is that the husband and wife have lived separate and apart without cohabitation for a period of one year. A situation that sometimes presents itself is when neither party wants to vacate the marital home.
Here is the scenario: John and Jane are married. Jane wants to divorce John but doesn’t want, or can’t afford, to move out of the marital home. John refuses to leave. Neither party has been abusive to the other, neither is habitually drunk, and no one has committed adultery. Jane comes into my office and says she wants to file for divorce and separate maintenance.
I explain to Jane that she cannot file for divorce because her and John have not lived separate and apart for a year. S.C. law only allows us to file for divorce when the husband and wife have lived separate and apart without cohabitation for a period of one year.
“Fine,” Jane says “then I want to file an action for separate maintenance and support.”
Jane is surprised to hear my response is that can’t. Under S.C. law, the parties must live separate and apart prior to petitioning the court for separate maintenance. Theisen v. Theisen, 394 S.C 434, 447, 716 S.E.2d 271, 277 (2011) (Living separate and apart therefore is a prerequisite to petitioning for an award of separate maintenance. Because Wife never alleged she was living separate and apart from Husband, the family court did not err in dismissing her complaint under Rule 12(b)(6), SCRCP).
Because John and Jane are still living together, she cannot petition the court for separate maintenance.
If there are grounds for the divorce and S.C. courts have jurisdiction, the next step is to determine the proper venue. There are a couple of possibilities for venue depending on whether or not the parties live in S.C.
A. If both parties live in SC, the case can be filed in the county where the parties last resided as husband and wife or the county in which the Defendant resides at the time of the commencement of the action.
B. If only the Defendant lives in SC, the case must be filed in the county in which the Defendant resides at the time of the commencement of the action.
C. If the Defendant does not live in South Carolina, the case must be filed in the county in which the Plaintiff resides.
SIDEBAR: Can I get her stuff if she lives in another state?
Bob comes to my office and wants a divorce from Sue. Sue lives in Georgia and the parties last resided as husband and wife in Georgia. Bob has lived in Greenville County, S.C. for over a year. Sue has never been to S.C. and has always lived in Georgia. Sue doesn’t own any property in S.C.
Bob wants to know if he can file for divorce in Greenville County. I tell Bob that he can. He has lived in S.C. for over a year so the family court has jurisdiction and he lives in Greenville County so that is the proper venue.
“Great!” Bob says. “I want to go after her for alimony!”
Bob is dismayed when I tell him that he can’t. His eyes begin to gloss over when I give him the legal explanation.
A decree simply awarding a divorce is a judgment in rem. A judgment in rem is an adjudication, pronounced upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose.
SC Code 20-3-10 grants the South Carolina Family Court with authority to grant a divorce between a SC resident and a nonresident. The South Carolina Family Court can dissolve the marital status of Bob and Sue.
A decree awarding Bob alimony is a judgment in personam. A judgment in personam is a judgment against a particular person, as distinguished from a judgment against a thing or a right or status. Since Bob has already told me that Sue doesn’t own any property in SC, the South Carolina Family Court doesn’t have jurisdiction to grant him an award of alimony. Carnie v. Carnie, 252 S.C. 471, 476, 167 S.E.2d 297, 299 (1969)( constructive service in itself, whether made by publication or by actual service of process upon the defendant outside the state, is insufficient to give jurisdiction to render a judgment for alimony against a nonresident which will be binding upon him except as to his property within the jurisdiction).
I regretfully inform Bob that if he wants an award of alimony against Sue, he will need to file suit in Georgia and that I am not licensed to practice in that state.