Desertion and Abandonment in South Carolina Divorces: How to File

When a spouse packs their bags, walks out the door, and completely abandons the marriage, the emotional and financial devastation left behind can be overwhelming. You are suddenly forced to handle the household bills, childcare, and daily responsibilities entirely on your own. In South Carolina, you do not have to remain legally tied to someone who has refused to participate in the marriage. State law recognizes desertion (often referred to as abandonment) as a specific fault ground for divorce.

However, simply living apart does not automatically constitute legal desertion. The family court requires you to meet strict statutory elements to prove that the abandonment was intentional and unjustified. Because proving intent can be a complex legal hurdle, it is highly recommended to seek professional representation. You can use our US Lawyers directory to find an experienced local family law attorney who understands the nuances of South Carolina fault-based divorces and can help you gather the necessary evidence.

The One-Year Absence Requirement

In South Carolina, desertion is defined by strict timeframes and specific legal conditions. Under S.C. Code Ann. § 20-3-10(2), a divorce may be granted based on desertion for a period of one year. This means your spouse must be continuously absent from the marital home for 365 consecutive days before you can finalize the divorce on this specific ground. To succeed in a local court, such as the Charleston County Family Court, Charleston or the Spartanburg County Family Court, Spartanburg, you must prove four critical elements: the cessation of cohabitation, the intent of your spouse not to resume cohabitation, the absence of your consent to the separation, and the absence of any legal justification for their departure.

Unjustified Abandonment and Refusal to Cohabit

For an absence to be considered desertion, your spouse must have left without a valid reason. If they left because they were deployed by the military, took a temporary job in another state, or left because you told them to pack their bags, this is not legal desertion. You must demonstrate that you wanted to continue the marriage and that they unilaterally refused to live with you. Furthermore, if a spouse remains in the home but completely withdraws from all marital duties (including refusing all physical intimacy and financial support), this severe refusal to cohabit may sometimes contribute to abandonment claims, though physical departure is the most standard application of the law.

Constructive Desertion: When You Are Forced to Leave

What happens if you are the one who left the house, but you only left because your spouse's behavior made living there completely intolerable? South Carolina law recognizes a powerful concept known as 'constructive desertion.' If your spouse engaged in severe misconduct-such as constant physical abuse, untreated severe addiction, or extreme emotional cruelty-and you were forced to flee for your own physical or mental safety, the law views your spouse as the deserter, not you.

This principle is deeply established in South Carolina case law, notably in precedents like Machado v. Machado, 220 S.C. 90 (SC Supreme Court 1951). The court holds that the spouse who creates the unbearable living conditions is legally responsible for destroying the cohabitation. Therefore, even though you walked out the door, you can file for divorce claiming your spouse is guilty of constructive desertion.

How to File and Financial Implications

To initiate a divorce once the one-year desertion period has run, your attorney will draft an individualized complaint alleging desertion pursuant to the South Carolina Rules of Family Court (unlike simplified no-fault separations that utilize Form SCCA 400.02 SRL-DIV, South Carolina, Judicial Department, Complaint for Divorce). Crucially, a divorce complaint based on desertion cannot be filed until the continuous 365-day absence has fully elapsed. However, you do not have to wait without financial relief: while the clock is running, your attorney can file an independent action for separate maintenance and support under S.C. Code Ann. § 20-3-130 along with a motion for temporary relief pursuant to Rule 21 of the South Carolina Rules of Family Court. At a temporary hearing, a judge can order the abandoning spouse to pay temporary spousal support, child maintenance, and grant exclusive use of the marital home. Once finalized, proving desertion can heavily influence the final division of assets, empowering the judge to award the deserted spouse a larger share of the marital property.

Frequently Asked Questions (FAQ)