Domestic Violence and Divorce

Many times opportunistic individuals may attempt to use South Carolina's Criminal Domestic Violence laws as a springboard to gain a prospective advantage in a pending or planned Family Court action. This includes situations where the complainant and alleged offender are married, have a child in common or are cohabitating.

There can be many actual or perceived advantages that those considering a separation or divorce may consider when determining whether or not to make CDV allegations. For example in South Carolina unless a party can make a prima facie case that their spouse's conduct gives rise to a fault ground (cruelty, drunkenness or adultery) a South Carolina Family Court may not have jurisdiction to order a spouse to leave the marital home. Upon learning this requirement from friends or a family law attorney, some vindictive spouses may seek to shortcut the process by making allegations of domestic violence. They will hope that upon arrest the Bond Court "no-contact" order or Order of Protection process will effectively grant them exclusive use of the marital home.

Order for Protection

Until recent times in order for a South Carolina Family Court to have contested case jurisdiction over an individual they either needed to be married or have a child in common with the other party. That changed with the enactment of the Protection from Domestic Abuse Act in S.C Code § 20-4-10, et seq.

Under this special law the Family Court has jurisdiction in cases with allegations of domestic violence between "household members." Household members are defined the same as they are for CDV law purposes, being:

• A spouse;
• A former spouse;
• Persons who have a child in common;
• A male and female who are cohabitating or formerly have cohabitated.

Pursuant to the Order for Protection procedures the Family Court can hear a request for relief filed by a "Household Member" who alleges abuse. Abuse is defined differently, and more narrowly, for these purposes than allegations which may serve as the basis for a CDV arrest or conviction.

Under the Order of Protection law "Abuse" is defined as:

• Physical harm, bodily injury, assault, or the threat of physical harm;
• Sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member.

Many times law enforcement will refer an alleged victim of domestic violence to the Family Court to seek an Order of Protection. In many counties there are special interest groups that will assist with the preparation and filing of a Court petition for an Order of Protection. Sometimes a lawyer will be provided by the group. Services provide by a special interest group are generally at no charge. By law there is no Court fee to file an Order of Protection. Individuals who are alleged to have committed abuse, and who are noticed to come to Court, do not receive a free attorney and must retain private counsel at their own expense.

Once a Petition for an Order of Protection is filed it will be served upon the alleged offender. The Court will schedule a hearing, sometimes in as little as 24 hours. At the hearing the Court may take live testimony of any witnesses. If the Court finds by preponderance of the evidence (a lower standard than the beyond a reasonable doubt standard necessary to convict for the crime of CDV or DVHAN), they can provide relief.

This relief may include:

• Award custody of any minor children;
• An order denying or establishing visitation;
• Establishment of child support;
• Granting possession of the residence (even in situations where the parties are not married and only the residence is only in the alleged offender's name);
• Awarding temporary possession of any personal property;
• Ordering the alleged accused to pay their accuser's attorney fees;
• Granting temporary alimony or separate support and maintenance payments to the accuser;
• A no-contact order prohibiting contact with any minor children;
• A restraining order prohibiting the disposal of shared property or access to a joint bank account.

In addition when the Family Court grants an Order of Protection it will include its own "no-contact" provision. This "no-contact" provision is very different than the one that may be imposed by the Bond Court after a CDV arrest in that violation of it is a separate criminal offense. Further it will be entered into the police computer systems so the police will know if the alleged offender is ever stopped by the police.

The Order for Protection generally remains in place for six months to one year. They also will expire if either of the parties files a private Family Court action and receives either an Order granting temporary relief or any final Order.

The Order for Protection hearing can actually be a critical stage in any contested domestic violence case. Because the Court can conduct these hearings like a trial, complete with live testimony and cross-examination, it can be an important opportunity to establish the final version of events leading up to the CDV arrest. Family Court proceedings are conducted with a court reporter present, meaning that it will be possible to obtain an official transcript of the testimony provided. That transcript may be invaluable in preparing for the CDV or DVHAN trial, and can be used to impeach, or challenge, a witness later if their story changes.

This also works both ways, and everything said in a Family Court hearing can and may be used against a defendant in a subsequent Criminal Domestic Violence Magistrate or General Sessions trial. It is very important that if you or a loved one has received notice of the filing of an Order of Protection affecting your interests that you consult with a qualified attorney knowledgeable in Criminal Domestic Violence and Family Court law and procedure.

The Order of Protection process, as discussed above, is viewed by some as a "free" quasi separation or divorce proceeding. Because there is no required filing fee, and some legal services may be available for no charge, it may be perceived as an attractive option to spending thousands on a Family Law attorney retainer and then waiting weeks or months for a regularly scheduled hearing.

James Snell has experience in defending allegations of domestic abuse in these Family Court hearings. If you or a loved one has received notice of these proceedings please do not delay in seeking protection of your rights.

Physical Cruelty Divorces

South Carolina is the only state in the nation with the grounds for divorce specifically laid out in the State Constitution. Those grounds are physical cruelty, habitual drunkenness, adultery, abandonment for one year and one year continuous separation.

South Carolina family law's standards for physical cruelty are not the same for conviction under the CDV or DVHAN laws. For family law purposes physical cruelty has been defined as "actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe." Brown vs. Brown, 215 S.C. 502 (S.C. 1949). This compares to the much broader and less restrictive requirements of South Carolina's domestic violence statute which does not require physical harm or any actual violence.

There can be many instances in which alleged conduct would violate South Carolina's CDV laws but not rise to the level necessary to provide a ground for divorce. Because of this an arrest, or even a conviction, for CDV would not automatically entitle a spouse to obtain a fault based divorce.

If a Court does however ultimately find that domestic violence occurred, even if it does not rise to the level necessary to grant a divorce on physical cruelty grounds, it may serve as a part basis for granting or denying alimony, or altering the distribution of marital assets or apportionment of marital debts.

A motivation for CDV allegations can be a misconception about the time limits required to obtain a fault ground divorce in South Carolina. Under South Carolina law a divorce on the grounds of physical cruelty, drunkenness or adultery, may be obtained in as little as ninety days. This compares to the ordinary one year separation required for a no-fault divorce. However the only time South Carolina residents may come close to meeting the ninety day time-frame is if both spouses are in complete and total agreement as to how their case will be resolved. This includes all issues of custody, visitation, child support, alimony, definition of assets, distribution of assets, allocation of debts, and costs and fees of the family law action. If there are any unsettled issues the case will have to be resolved in a trial, which may take a year or longer to have scheduled.

Disputed Custody Cases

Parties in existing Family Court divorce or custody cases also may make complaints of domestic violence in order to obtain an advantage in their case. They may feel that having their children's mother or father arrested for CDV or DVHAN will make them appear to be the better parent in the eyes of the Court. This strategy certainly has the opportunity to backfire. False allegations of domestic violence or child abuse can be factors that the Family Court
considers in making a custody or visitation determination.