When facing a divorce in South Carolina, most people focus on proving grounds for divorce. However, South Carolina law recognizes seven specific defenses that can potentially defeat a fault-based divorce action. Understanding these affirmative defenses is crucial for anyone navigating the divorce process in Charleston, Berkeley, or Dorchester Counties.
What Are Affirmative Defenses to Divorce in South Carolina?
Affirmative defenses to divorce are legal arguments that can prevent a court from granting a fault-based divorce, even when the grounds for divorce appear valid. These defenses must typically be properly pled and proven by the defending spouse according to South Carolina’s Rules of Civil Procedure. They serve as quality control measures in the divorce process, ensuring that marriages aren’t dissolved based on improper agreements or when forgiveness has occurred.
The Seven Recognized Defenses to Divorce Actions
1. Collusion: When Both Spouses Secretly Agree
Collusion is a statutory defense that applies when both spouses secretly agree to create grounds for divorce. Under South Carolina law, courts must refuse to grant a divorce if the parties colluded or if the complained-of act was done with the plaintiff’s knowledge for the purpose of obtaining a divorce.
Key Points About Collusion:
- Requires agreement between both spouses about the acts alleged as divorce grounds
- Less common today due to the availability of no-fault divorce based on one-year separation
- Does not apply when a defendant simply defaults in the proceedings
- Ordinary procedural acts to facilitate a speedy divorce don’t constitute collusion if the underlying marital fault actually occurred
2. Connivance: One Spouse’s Consent to Misconduct
Connivance occurs when the complaining spouse consents—either expressly or implicitly—to the misconduct they’re using as grounds for divorce. This defense requires corrupt intent, meaning the complaining spouse wanted their partner to engage in the misconduct.
Understanding Connivance:
- Only requires one spouse to plan or agree to the marital offense (unlike collusion)
- Most commonly raised in adultery cases but can apply to other grounds like habitual drunkenness
- Protects the integrity of the court system from misleading claims
- Active consent implies corrupt intent, making the defense complete
3. Recrimination: When Both Spouses Committed Marital Misconduct
Recrimination allows a spouse to prevent a fault-based divorce by proving the other spouse also engaged in conduct sufficient to warrant divorce. While this defense can prevent the divorce itself, it has become less significant with South Carolina’s no-fault divorce option. The American Bar Association’s Family Law Section notes that recrimination has evolved significantly in modern divorce practice.
Important Aspects of Recrimination:
- Does not apply to no-fault divorces based on one-year separation
- The plaintiff’s misconduct must provide independent grounds for divorce
- Must be pleaded as an affirmative defense
- Critical for alimony: Even if recrimination is proven, an adulterous spouse can still be barred from receiving permanent alimony
4. Condonation: The Power of Forgiveness
Condonation is one of the most important defenses in South Carolina divorce law. It involves forgiveness—express or implied—by one spouse for the other’s breach of marital duty. This defense can defeat both a divorce action and destroy a recrimination defense. The concept of condonation has deep roots in common law, as explained by Cornell Law School’s Legal Information Institute.
Elements of Condonation:
- Requires forgiveness of the marital offense
- Must include mutual intention to renew the full marital relationship
- Requires knowledge of the marital offense
- Can be implied from continuing cohabitation after learning of misconduct
Limitations:
- Brief continued residence for practical reasons (children’s needs, housing issues) doesn’t necessarily prove condonation
- Condoned adultery cannot be used to deny alimony, especially when adultery has been proven
- Condonation is conditional—subsequent misconduct can revive the original grounds
5. Reconciliation: Unconditional Resumption of Marriage
Reconciliation closely relates to condonation but specifically affects no-fault divorce grounds based on separation. A complete and unconditional resumption of cohabitation ends the separation period required for no-fault divorce.
Key Distinctions:
- Trial reconciliations: Isolated sexual encounters or brief attempts at reconciliation may not restart the separation period
- Courts examine the parties’ intent to permanently settle differences
- Unlike condonation (which is conditional), true reconciliation is unconditional
- Reconciliation agreements cannot restrict fundamental marital rights and responsibilities
6. Provocation: When Actions Trigger Reactions
Provocation typically arises in physical cruelty cases. Courts will not grant divorce on grounds of physical cruelty when the complained-of acts were provoked by the complaining spouse’s misconduct. The South Carolina Bar’s Family Law Section provides continuing education on how provocation defenses are evaluated in modern practice.
Limits of the Provocation Defense:
- The retaliatory conduct must be proportionate to the provoking conduct
- Mutual combat (similarly violent acts by both spouses) may result in no divorce being granted
- Courts carefully weigh the severity of both the provocation and the response
7. Insanity: Lack of Mental Capacity
While South Carolina has no specific statute making insanity a defense to divorce, mental illness can affect divorce proceedings in two ways:
In Fault-Based Cases:
- Mental illness causing lack of capacity can defend against adultery charges
- Courts determine whether the spouse could understand their actions were wrong
In No-Fault Cases:
- Separation due to mental hospital confinement doesn’t satisfy the “living separate and apart” requirement
- Both parties must be competent enough to be conscious that separation has occurred
How These Defenses Impact Your Divorce Case
Understanding these defenses is crucial for several reasons:
- Strategic Planning: Knowing available defenses helps both parties prepare stronger cases
- Alimony Implications: Some defenses affect property division but not alimony eligibility under South Carolina Code § 20-3-130
- No-Fault Alternative: Many defenses don’t apply to South Carolina’s one-year separation ground
- Timing Matters: Some defenses must be properly pled early in the proceedings
When to Consult a South Carolina Divorce Attorney
These affirmative defenses involve complex legal analysis and strategic considerations. The interplay between fault-based grounds, defenses, and their impact on alimony and property division requires experienced legal guidance. Each situation is unique, and what constitutes condonation, reconciliation, or provocation depends heavily on specific facts and circumstances.
Protecting Your Rights in Charleston Family Court
Whether you’re pursuing a divorce or defending against one, understanding these seven defenses helps you make informed decisions about your case. The availability and effectiveness of each defense depend on your specific circumstances and the grounds alleged for divorce.
If you’re facing divorce proceedings in Charleston, Berkeley, or Dorchester Counties and believe one of these defenses may apply to your situation, consulting with an experienced family law attorney is essential. Proper pleading and timely assertion of these defenses can significantly impact the outcome of your case.
Need Help Understanding Divorce Defenses in Your South Carolina Case?
At Klok Law Firm LLC, we help clients navigate the complexities of South Carolina divorce law, including understanding and asserting appropriate defenses. Contact us today to discuss how these defenses might apply to your specific situation.