A common misconception is that if you have your spouse arrested for CDV it will result in being able to obtain a divorce in as little as 90 days and it will be a faster and easier process. This article explains why this isn't true in most cases based on the following three factors:
1. Contested cases take up to a year, or more, to be scheduled for Court time.
2. By assigning blame on your spouse and asking the Court to find them at fault you may make them become emotional and defensive - making it difficult or impossible to reach an agreement on even minor issues.
3. A CDV case can be based on a single unwanted touching. No physical harm is required. The grounds to obtain a divorce on the grounds of physical cruelty are much higher.
Introduction to South Carolina Divorce Grounds
In South Carolina there are only a limited number of grounds for divorce. They are:
One Year Separation
The grounds for abandonment and one year separation both require the parties have lived separate and apart for at least one year prior to a divorce being granted. The fault grounds of adultery, physical cruelty and habitual drunkenness allow the Family Court to grant a divorce in as little as 90 days after the filing of the petition. This is the foundation for the misconception that a CDV arrest will result in a faster divorce.
Contested or Uncontested?
In a divorce case there are several issues which must be resolved by either the parties themselves or the Family Court. Examples include:
Apportionment of Marital Debt
Distribution of Marital Assets
Possession of the Marital Home
Unless each and every one of these issues are fully settled and agreed upon between the parties the case will be considered contested. In order to resolve a contested case the Family Court will hold a trial in which the parties and their witnesses come to Court and testify. Most contested trials, especially in cases involving minor children, take several hours or days. This contrasts to an uncontested case, with no unsettled issues, which may be presented to the Court in as little as 15 minutes.
How much time in Court do you need?
When you request a Family Court hearing in South Carolina you notify the Court up front as to how much time you will need. There is a direct relationship between the amount of time you request and how long it takes to receive a hearing. Quick 15 or 30 minute hearings are often scheduled in 4-8 weeks (or sooner). One or two day trials may take a year or longer in order to be scheduled. You will not receive a divorce until you actually appear in Family Court and a judge signs a divorce order.
It is also important to note that in order for a divorce action to be uncontested both sides must also agree on the grounds the Court will use to grant the divorce. For example if you are attempting to divorce your wife on the grounds of habitual drunkenness she must not challenge you and your witnesses opinion of her conduct in order for your case to be considered uncontested. This is regardless of her history of alcohol abuse or the number of DUI arrests she has.
Because of the limited availability of Family Court hearing time in South Carolina, and the wait you have to have for a contested hearing, it is impossible to have a contested case heard in a 90 day time period.
Allegations of Misconduct may Delay Settlement
A divorce is not just the disillusionment of a marriage. It is also the end of a financial partnership, household and a romance. It is as much of an emotional process as it is a legal one.
When there are allegations of fault made against one side the typical reaction is for them to become defensive. It will be difficult for them to on one side logically and reasonably attempt to resolve the necessary issues while on the other to try contend with allegations they probably do not personally agree with of being physically abusive.
Because the fastest way in South Carolina to obtain a divorce is by reaching a full agreement with your spouse on all issues, alleging physical cruelty may in fact delay your case until either emotions subside or the Court can schedule a contested hearing for your case.
CDV is not Physical Cruelty
South Carolina's CDV law makes it unlawful to touch, attempt to touch or tell someone you are going to touch them in a rude or offensive manor. This is a broad definition that encompasses conduct which otherwise would not be criminal or violent.
In comparison the bar is set fairly high for a Court to find circumstances necessary to grant a physical cruelty divorce. In almost all cases more than one incident of violence and resulting in some degree of physical harm will be required.
Because of these different standards there are many occasions where allegations significant enough to result in a CDV arrest and conviction will not rise to the level necessary to obtain a physical cruelty divorce.