Jun 09

No More Pain: How to File for Divorce on the Basis of Physical Cruelty

Written by: Megan Dell


Divorce proceedings are always hard, but when physical cruelty is involved, every issue becomes more complicated. Understanding the impact of domestic abuse on your case and how to prove what is considered physical cruelty for divorce, is crucial to ensure fair outcomes in child custody, division of the marital estate, and alimony. Read on to learn the definition of “physical cruelty,” how to prove it in Family Court, and its consequences on various aspects of your case.

Woman on the ground being physically assaulted

South Carolina Physical Cruelty Definition

S.C. Code Ann. Section 20-3-10(3) allows South Carolina residents to seek divorce due to physical cruelty. Physical cruelty in divorce is defined as “actual personal violence, or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe.” Brown v. Brown, 215 S.C. 502 (1949)

A divorce alleging physical cruelty is considered a “fault based divorce.” However, it is worth noting: even if you initially seek a divorce based on domestic violence, you always have the option of obtaining a no fault divorce should you choose to waive the fault based divorce.

What is Considered Cruelty in Divorce?

As a practical matter, South Carolina Family Courts are less likely to award a divorce on the ground of physical cruelty than you might expect.

Woman ready to file for a divorce based on physical cruelty

A Single Act of Abuse Is Often Not Enough

Unfortunately, South Carolina courts have determined a single act of abuse is, generally, not enough to support a divorce on grounds of physical cruelty. If seeking a divorce on grounds of cruelty after a single act of abuse, you must show the act was so severe and atrocious as to endanger life, or that the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future.

Additionally, a single act of aggravated cruelty may warrant a divorce if it accompanied with circumstances that convince the Family Court the act is likely to be repeated.

Differences in the Spouses’ Size and Strength May Matter

The court is sometimes “skeptical of the existence of fear or danger where a husky husband, in good health, is complaining of physical cruelty on the part of his frail [wife].” Brown v. Brown, 250 S.C. 114 (1967).

woman physically abuse towards her husband, wit a raised fist

Cases When Physical Violence Did Not Support A Divorce

In Barstow v. Barstow, 223 S.C. 136 (1953), the husband was not entitled to divorce due to abuse after the wife struck him with the spike of her high-heeled shoe.

One instance in which a husband pushes his wife after an argument is not enough to warrant a finding of physical cruelty. Anders v. Anders, 285 S.C. 512 (1985)

Additionally, a husband who “manhandled” his wife, occasionally forcing her to sit in a chair and backing her into corners “to make her listen to him” was not a basis for divorce in Wood v. Wood, 269 S.C. 600 (1977)

Most shockingly, in Carpenter v. Burr, 381 S.C. 494 (Ct. App. 2009), the Court of Appeals, it was undisputed the husband and wife got into a struggle over a garden hose, resulting in the husband assaulting the wife — he “shoved a garden hose in her mouth.” The wife had to seek treatment at the emergency room and receive extensive dental work. Despite the husband’s bad behavior, the marriage was dissolved on alternate grounds.

Examples of Extreme Cruelty in Divorce Cases

Both McDowell v. McDowell, 300 S.C. 96 (Ct. App. 1989), and McKenzie v. McKenzie, 254 S.C. 372 (1970) provide examples of physical cruelty of a wife. Specifically, in each case, the wife shot the husband in the chest.

The case of Gorecki v. Gorecki, 387 S.C. 626 (Ct. App. 2010) is the most recent South Carolina appellate opinion addressing the merits of a claim for divorce on the ground of physical cruelty. In that case, the Family Court granted a divorce on the ground of physical cruelty after the husband shoved the wife against the wall without injuring her, noting the act was accompanied by verbal abuse and destruction of the wife’s telephone and followed a long history of physical violence throughout the marriage and relationship.

woman holds up her arm to stop physical cruelty as basis to file for divorce

Summary of Physical Cruelty Law in South Carolina

In simple terms, based on the law, it is incredibly hard to predict whether the Family Court will award a divorce on the ground of physical cruelty.

  • A single physical assault that leads to emergency medical care and requires dental repairs may not be enough to obtain a divorce.
  • A pattern of threats and physical abuse in marriage sufficient to cause the victim spouse to fear the perpetrator may be enough to obtain a divorce.
  • Showing that one spouse shot the other with a firearm should be adequate to obtain a divorce.

Seeking Emergency Protection from Domestic Abuse

S.C. Code Ann. Section 20-4-10, et seq. is referred to as the “Protection from Domestic Abuse Act.” This chapter of South Carolina laws allows a person to seek an order of protection from a household member who has abused them. (An order of protection is sometimes also referred to as a “restraining order” or a “protective order.”)

Abuse is defined as physical harm, bodily injury, assault, or the threat of physical harm, and includes sexual criminal offenses.

A victim of abuse by a household member may file a petition for an order of protection, and the Clerk of Court must provide forms to facilitate the preparation and filing of the petition. There is no filing fee when seeking protection from domestic violence.

At the hearing, the judge will carefully evaluate the evidence presented to determine whether the evidence supports a conclusion protection is needed to ensure the safety of the victim and the minor children. Upon a showing abuse has occurred, a court order prohibiting the perpetrator from engaging in further abuse will be entered.

Legal Implications of Physical Cruelty in Divorce

The impact of physical cruelty on custody and parenting time determinations can be substantial. Courts may grant the victim spouse exclusive custody of the children, or mandate supervised visitation for the abusive spouse. 

Additionally, physical cruelty can have a considerable effect on property division and spousal support decisions. A court may grant the victim spouse a greater portion of the marital property, or mandate the abusive spouse to pay alimony to the abused spouse.

Impact of Domestic Violence on Child Custody and Parenting Time

It is essential to minimize the exposure of children to abusive situations in order to reduce the amount of trauma they experience. Family Court judges will consider the best interests of the child when making decisions about custody and visitation. S.C. Code Ann. Section 63-15-240(B)(15) explicitly requires the Court to consider whether the children’s safety has been affected by domestic violence when determining their best interests.

Therefore, physical cruelty can have a significant impact on child custody decisions, potentially limiting or even terminating the abusive parent’s custody rights or right to visitation in extreme cases. 

In cases of physical cruelty, the court may order supervised visitation, or even terminate parental rights, to protect the child’s safety and wellbeing.

kids experiencing terror at the hands of their parent in a physical cruelty court case

Supervised Visitation

Supervised visitation is a court-ordered arrangement where a parent is only allowed to visit their child under the “sight and sound” supervision of another adult. “Sight and sound” means the supervisor must be able to see and hear all interactions between the parent and the child.

Paid, third party supervisors are available to provide visitation supervision services. Such services can be a source of considerable financial strain for the parent.

Alternatively, a trusted, proactive family member, mutual friend, pastor, or counselor may be permitted to act as a supervisor to facilitate visits. Such arrangements generally result in the visiting parent having more opportunities to see their child.

Termination of Parental Rights

In the most extreme cases, and after a parent has been provided a chance to seek mental health or other treatment, domestic violence between parents may warrant permanently ending the legal relationship between the perpetrator-parent and the child. 

women with black eye after domestic abuse

Cruelty’s Effect on Financial Aspects of Divorce

Cruelty can impact the division of assets and debts, as well as spousal support decisions in a divorce case. 

An abusive partner may try to control and hide assets during a divorce, making it more challenging for the victim spouse to receive a fair settlement. 

Spousal abuse can have an effect on the division of property, particularly when the person or spouse who has endured it can demonstrate that it caused them monetary losses or reduced their capacity to generate income.

Marital Property Division

S.C. Code Ann. Section 20-3-620(B) provides marital misconduct and the mental and physical health of each spouse are factors the court must consider when addressing apportionment of the marital assets and debts. 

Alimony and Spousal Support

An abused spouse may be eligible for financial support if they can show that the abuse has impacted their capacity for self-sufficiency. In certain circumstances, an abusive spouse who displays financial necessity may be eligible to receive alimony from the spouse who has experienced abuse. Spousal abuse can be taken into consideration by a judge when making a decision about alimony.

In cases involving spousal abuse, it is crucial for the victim spouse to work with an experienced divorce attorney to navigate the complexities of spousal support. A skilled attorney can help ensure that the victim receives an appropriate award of spousal support to help them rebuild their life after the divorce.

Proving Physical Cruelty in Divorce Proceedings

In abuse cases, the evidence should be presented in a clear and organized manner to ensure that the judge understands the full scope of the abuse. It is important to provide as much detail as possible to ensure that the judge can make an informed decision.

Witness Testimony

It is likely the victim of abuse will be required to testify (and be cross-examined) about the circumstances of the abuse. Additionally, witnesses who observed the abuse or its aftermath can provide valuable testimony to support the victim’s claims. 

Medical Records, Photographs, and Police Reports

As we have detailed, it can be difficult to provide physical cruelty as a basis for divorce. Any evidence that corroborates the abuse having occurred, including records showing medical treatment for injuries caused by abuse, any photographs of the abuse, and any police reports noting the victim had sought assistance from law enforcement can be particularly useful for showing a history and pattern of domestic violence.

Criminal Charges or Convictions

Pursuant to Rule 201, SCRE, the Court can also take judicial notice of any criminal charges or convictions for domestic violence.

Can I Get Divorced Due to Emotional or Mental Mental Abuse?

Emotional abuse is a form of domestic violence that can have a profound impact on spouses, former spouses, and co-parents. Unfortunately for victims, even if you can prove emotional abuse, South Carolina does not recognize emotional abuse or mental cruelty as a basis to award a divorce.

Hiring A Lawyer for Cruelty in Divorce Cases

When seeking the services of a divorce attorney when you have experienced physical or emotional abuse, it is crucial to obtain referrals from trusted sources and examine the credentials of the attorneys they suggest. Conduct thorough research by examining reviews, investigating the attorney’s credentials, and verifying their background.

By obtaining the right legal assistance, victims of cruelty in divorce can ensure that they receive the best possible outcome from the legal process.

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