Although the terms abandonment and desertion are often used interchangeably, only desertion is a recognized grounds for divorce in South Carolina. Desertion is a legal term in South Carolina divorce law.
A divorce on the grounds of desertion is a type of fault-based divorce in South Carolina. The spouse who has been deserted may seek a divorce based on desertion and may argue for the court to consider the other spouse’s actions as they divide marital property and consider an alimony award.
Turner Family Law is a family law and divorce firm serving Greenville, SC and the surrounding area. Today, our Greenville divorce attorneys will discuss divorce on the grounds of marital abandonment or desertion in South Carolina.
What is divorce on the grounds of desertion in SC?
Divorce on the grounds of desertion is a divorce from the bonds of matrimony based on one spouse abandoning their partner and the marital relationship. Generally, it’s when one spouse leaves the marital home and relationship for one year or more without the other party’s consent. If a divorce is awarded on the fault grounds of desertion, the deserting party’s actions will likely impact property division, alimony and any requests for legal fees in the case.
What are the elements required for divorce on the grounds of desertion in SC?
For a divorce on the grounds of desertion, there must be:
- Cessation from cohabitation for one year or more
- Intent not to resume cohabitation
- A lack of consent from the other spouse
- Absence of justification for leaving the marital home and relationship
The court in Machado v. Machado, 220 S.C. 90 (1951) explained the elements required for divorce on the grounds of desertion in South Carolina. Constructive desertion may be sufficient.
South Carolina Law for Divorce on Grounds of Desertion (Abandonment)
South Carolina Code Title 20 – Domestic Relationship, Chapter 3 – Divorce, the South Carolina divorce law, uses the term desertion only twice. However, the law discusses in detail how fault, including desertion, may have significant influence on the outcome of a divorce.
S.C. Code § 20-3-10 states that no divorce from matrimony shall be granted except for on one of the recognized grounds. One of the recognized grounds is desertion for a period of one year.
You may seek a divorce in South Carolina on the grounds that your spouse has deserted you, abandoning cohabitation, without your consent, for one year or more.
In addition to the recognition of desertion as grounds for divorce in S.C. Code § 20-3-10, desertion is mentioned in S.C. Code § 20-3-80 as it pertains to waiting periods. There is usually a three-month waiting period before the court may issue a final decree. But when the grounds for divorce is desertion, the court may issue the final decree as soon as responsive pleadings are filed or the responding spouse defaults, whichever comes first.
How is desertion considered in property division, child custody or alimony?
Although South Carolina divorce laws only use the word desertion twice, the conduct of a party in deserting their spouse may have a significant impact on the outcome of a divorce. Since it’s considered fault, the court may consider it when weighing a request for alimony. (S.C. Code § 20-3-130(C)). Fault may likewise be considered when allocating marital property and deciding whether to award attorney fees and legal costs. (S.C. Code § 20-3-620).
How is desertion considered in determining child custody?
While marital desertion doesn’t directly determine child custody, it can have a significant impact indirectly. The court may consider the interaction and relationship of the child with each parent, actions of parents to encourage the parent-child relationship with the other parent and manipulative behavior of parents in the child custody matter. (S.C. § 63-15-240). Desertion may weigh significantly against the deserting parent in a custody determination to the extent that it impacts the best interests of the child.
What if the marital home is intolerable or abusive?
South Carolina courts have recognized that desertion may be constructive. One party may make the home so intolerable that the other person is justified in leaving.
The courts have set high standards for what justifies a spouse in leaving. For example, in Lindsey v. Lindsey, 143 S.E. 2d 154 (S.C. 1965), the court said that incompatibility and nagging do not amount to constructive desertion. The husband claimed he was “constantly nagged and abused by his wife.” The court found the allegations insufficient.
What if one spouse refuses to engage in sexual relations? Is it desertion?
By itself, failing to engage in sexual relations does not satisfy the standard of desertion in South Carolina divorce law. (Boozer v. Boozer, 242 S.C. 292 (1963)).
Lawyer for Divorce on the Grounds of Desertion – Talk to a Lawyer
We invite you to have a personalized consultation with Turner Family Law. We can explain desertion in South Carolina and other laws that may be relevant to your circumstances. We can guide you through possible courses of action and what to consider as you plan for the future.
For a personalized consultation about desertion in a South Carolina divorce, contact Turner Family Law.