SC Lawyer, Sept. 2005, #4. Myths about marriage and divorce in South Carolina.

AuthorBy Joanne Hughes Burkett

South Carolina Lawyer


SC Lawyer, Sept. 2005, #4.

Myths about marriage and divorce in South Carolina

South Carolina LawyerSeptember 2005Myths about marriage and divorce in South CarolinaBy Joanne Hughes BurkettMarriage and divorce are the activities with legal consequences with which the average citizen is most familiar. People think they know, or at least have a pretty good idea, what the law says about these issues. However, many common myths exist about the law of marriage and divorce in South Carolina.

This article seeks to debunk some of those popular myths and set the record straight for those on both sides of the bar. However, please note that family law is very state specific and varies widely among the states. Living together for 7 years makes you common law married.

Even The State newspaper got this wrong in a May 2005 article on the possible abolition of common law marriage in South Carolina.

Although S.C. Code § 20-1-210 requires a marriage license, the state recognizes common law marriage based on a public policy that strongly favors marriage. Therefore, despite the license requirement, the state will consider two people married so long as they meet four criteria: capacity, mutual agreement, cohabitation and holding out to the public.

To have capacity, both parties must be of a proper age under S.C. Code § 20-1-250 and § 20-1-300. They must be free to marry, that is, not already married and, under § 20-1-15, not of the same gender. They must be mentally competent. Finally, the parties must not be too closely related. Another popular myth is that cousins cannot marry, but under § 20-1-10 B&C, "cousins" is not included in the list of people prohibited from marrying.

For mutual agreement, both parties must intend to be married. Then they must live together as husband and wife, although the law is not clear on whether sexual intercourse is required to establish cohabitation. Finally, they must represent to others that they are married by doing something public such as filing joint tax returns, using the same last name, calling themselves Mr. and Mrs., setting up joint accounts or owning property jointly.

The law does not define a specific length of time you must live together or a certain method of representation that you are married. Once you meet all four criteria, then you are married, even if you have not obtained a license.

If you can be married just by living together, then you can be divorced by living apart.

This myth is hard to state because there is some truth mixed with the error. Just as it takes more than living together to make you common law married, it takes more than living apart to get a divorce. Once you are married, either by license or by meeting the four common law criteria, to get a divorce you must comply with South Carolina's divorce laws.

In South Carolina, you can file for divorce based on a claim of fault - physical cruelty, habitual drunkenness or drug use, adultery or desertion - or on the no-fault ground of having lived separate and apart for more than one year. S.C. Code Ann. § 20-3-10. After you have lived apart for a year, you may get a divorce on that ground, but you are not divorced simply by living separately.

It isn't adultery because we only did it once.

Actually, it may be adultery even if you never did it at all. To prove that you committed adultery, your spouse need only show a family court that you had the opportunity and inclination to be sexually intimate with someone other than your legal spouse. After RGM v. DEM, 306 S.C. 145, 410 S.E.2d 564 (1991), that other person may even be someone of your same gender.

Proof of opportunity and inclination is likely to be purely circumstantial. But because the private nature of adultery makes it nearly impossible to obtain direct evidence of misconduct,

courts find indirect and inferential evidence convincing so long as it establishes the disposition to commit the offense and the opportunity to do so. Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989). However, proof of adultery must be established by a clear preponderance of the evidence. Odom v. Odom, 248 S.C. 144, 149 S.E.2d 353 (1966). Mann v. Mann, 252 S.C. 160, 165 S.E.2d 632 (1969). You can get an annulment within 30 days after you are married.

This myth is related to "lemon laws" for automobiles, where you can...

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