One question that I am frequently asked involves divorces in which one person is seeking a divorce based on a fault ground. Many people want to know if they can use the other person’s misconduct to get a divorce, or vice versa. The answer, as it frequently is in the law, is that it depends.
But what if you are the spouse that is being blamed? Do you have any options?
There are certain “defenses” to divorce allegations that, if applicable, can help shield you from fault or at least help share the blame. There are four defenses to divorce recognized in South Carolina.
If you are attempting to prove fault on the part of your spouse, or if you are the one being accused of being at fault, it is important to know what could be coming next.
SC Defenses to Divorce: The Basics
A fault ground is some sort of misconduct by one spouse that gives rise to the divorce. The three fault grounds used today are habitual drunkenness, adultery, and physical cruelty. There are some defenses to these allegations of fault.
A defense to a divorce is basically a reason that negates a person’s wrongdoing. It can result in a fault divorce being turned into a no-fault divorce.
One might ask, why would you need to assert a defense to divorce? You may need to assert available defenses if your spouse seeks a fault divorce alleging you are at fault for the dissolution of the marriage. In those cases, it may be beneficial to the defendant if she/he has defenses to the allegations the other party is asserting.
Sometimes it may be easier to get a divorce on the ground of one year separation than on a fault ground, especially if the end result is going to be the same (the parties end up divorced and property division and alimony ended up being the same in both scenarios).
Potential SC Defenses
The defenses to divorce in South Carolina include condonation, recrimination, connivance and collusion.
The defense of condonation exists where one party has engaged in marital misconduct, but the other party has forgiven the offending party. This defense is typically used in adultery cases.
For example, imagine a wife commits adultery, the husband finds out about it, the husband forgives the wife, and they continue in their marriage. Five years later, the husband decides he wants a divorce. The husband alleges it is because of the adultery committed five years earlier. Assuming wife has not committed adultery again, wife will be able to defend the allegation of adultery because the husband has forgiven her.
Another defense to a fault divorce is recrimination. Recrimination is where the party accused of marital misconduct indicates that the other party committed the same misconduct.
For example, imagine a husband and wife, with each committing adultery without the knowledge of the other. Then husband finds out wife is committing adultery and decides to divorce her based on the adultery. Wife would be able to assert a defense of recrimination. The husband does not get to complain about the same conduct in which he himself is engaging. He comes to court with “unclean hands”, and thus, should not be able to obtain a divorce on the basis of adultery.
Another defense to a fault divorce is connivance. Connivance is where one party essentially consents to the actions of the at fault spouse before they happened. Connivance is typically a defense in adultery cases.
For example, a husband stops every night on the way home from work to pick up several bottles of wine for wife to drink. He then files for divorce alleging habitual drunkenness. Wife will be able to assert a defense of connivance based on her husband consenting to her conduct.
Another example would be if a wife brings an action for divorce against her husband alleging adultery, but wife consented to the adultery before the affair happened. The husband would be able to assert the defense of connivance.
Another defense is collusion. Collusion is where both spouses agree for one of them to commit or appear to commit one of the grounds for at-fault divorce in order to get an at-fault divorce, which only requires 90 days of separation from the date of filing.
An example would be if husband and wife agree they want a divorce and plan to make it look like the wife has been having an affair. Husband then brings a divorce action claiming adultery as the ground for divorce. Husband or wife can then bring defense of collusion to stop the divorce before it is finalized.
Accused of being “at fault” in your divorce?
Defenses to divorce are common, but can sometimes be tricky. If you are facing a divorce, you not only need to know what to allege, but also how to defend your case.
If you know the other party has one of these defenses, it could be best not to seek an at-fault divorce. On the other hand, if you are the spouse being accused of misconduct, you need to know what you can do to protect yourself.