South Carolina  |  Family Law

Legal Question

Asked on: 6/12/13, 7:12 am

My spouse just served me with divorce papers on grounds of one year separation. We live in SC. As a defendant, can I answer with a counterclaim on grounds of adultery? Or does it matter?

1 Answer

Answered on: 7/12/13, 5:57 pm by Barbara Strowd

Yes, as a Defendant you may ask for a divorce on the ground of adultery. You will need proof, but not of actual sex. To prove adultery you must show that your spouse had the inclination to cheat and the opportunity. Opportunity means that you can show that he or she and the "other" were alone inside a home or hotel room long enough to complete the deed. Inclination can be shown with emails, phone records, greeting cards with loving words, etc. The difference between adultery and one year of separation is that adultery is a fault ground. If you have already been separated a year, you can get divorced in about 30-45 days after filing if there is nothing contested. If you file a counterclaim on the ground of adultery, you will have to wait 90 days from the filing of your counterclaim to get your divorce. With obtaining a divorce on a fault ground you may get a more favorable property settlement, may have a better chance at receiving alimony, and if there are children the judge may consider the adulterous behavior when awarding custody. I hope this helps.

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Barbara A. Strowd, Attorney at Law 200 W. 5th N. St. Ste. C Summerville, SC 29483

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