Defenses to a Fault-Based Divorce in South Carolina

Reviewed by Carrie Warner, Attorney at Law, SC Bar No. 72836 · Last reviewed November 2, 2026

If your spouse files for divorce on a fault ground (adultery, physical cruelty, habitual drunkenness or desertion), you may be able to defend against that ground. The most common defense is simply that the evidence does not meet the required standard. South Carolina courts have also recognized traditional defenses such as condonation and recrimination, and the law bars a divorce obtained by collusion. Defending a fault ground does not necessarily stop the divorce, but it can matter a great deal for alimony and property.

Why Defending a Fault Ground Matters

Under S.C. Code § 20-3-10, South Carolina recognizes five grounds for divorce. Four are fault grounds. The fifth, living separate and apart without cohabitation for one year, is no-fault.

A finding of fault can have consequences beyond the divorce itself:

• Alimony bar. Under § 20-3-130(A), a spouse who commits adultery before the earlier of a formally signed written settlement agreement or a permanent order of separate maintenance (or an order approving an agreement) cannot receive alimony.
• Alimony factors. Marital misconduct or fault is one of the factors courts weigh in setting alimony under § 20-3-130(C).
• Property factors. Fault that affected the parties’ finances or contributed to the breakup is one of the factors in dividing marital property under § 20-3-620(B).
• Timing. A fault ground other than desertion can allow a final decree after a 3-month minimum, rather than waiting a full year of separation.

So even a spouse who wants the divorce may have strong reasons to contest a fault allegation.

Defense 1: The Evidence Does Not Meet the Standard

The spouse alleging fault has the burden of proving it. For adultery, SC case law requires a clear preponderance of the evidence, and circumstantial proof must show both inclination and opportunity. For other grounds, the evidence must establish each element. For example, habitual drunkenness generally requires a pattern, not an occasional incident.

Family court judges also generally expect grounds to be corroborated by a witness other than the spouses, or by other evidence. A case built only on one spouse’s suspicions may not meet that expectation.

Challenging the evidence may involve:

• offering innocent explanations for circumstantial facts;
• showing gaps in an investigator’s observations;
• questioning how evidence was obtained, especially if it came from accessing your accounts or devices without permission; and
• presenting witnesses or records that contradict the allegations.

Our guide to how adultery is proven shows what the other side will need to establish.

Defense 2: Condonation (Forgiveness)

Condonation means the innocent spouse forgave the misconduct after learning about it. It is usually shown by conduct, such as resuming the marital relationship with full knowledge of what happened. For example, a spouse who discovers an affair, chooses to stay, and continues living together as husband and wife may later face a condonation argument if they try to use that affair as a ground.

Some important limits:

• Knowledge matters. Generally, forgiveness only counts if the spouse knew about the misconduct. Forgiving one incident does not forgive others that were hidden.
• Condonation can be conditional. Courts have generally treated forgiveness as conditioned on good behavior going forward. Later misconduct may revive the original ground.
• Every case is factual. Whether a spouse truly forgave, and what was forgiven, depends on the circumstances.

This defense often comes up after attempts to reconcile. Our guide on reconciling during a divorce explains other effects of getting back together.

Defense 3: Recrimination

Recrimination is the argument that the spouse seeking a fault divorce is also guilty of conduct that would itself be a ground for divorce. For example, a spouse accused of adultery might respond that the accusing spouse also committed adultery.

Recrimination has an important statutory limit. Section 20-3-10(5) says a plea of recrimination is not a bar to either party obtaining a divorce on the one-year separation ground. In other words, even when both spouses have engaged in misconduct, a no-fault divorce remains available once the separation requirement is met. How recrimination applies to the fault grounds is fact-specific and is a question for your attorney.

Defense 4: Collusion

Collusion is a statutory bar. Under S.C. Code § 20-3-20, if the court is satisfied that the spouses colluded, or that the act complained of was done with the plaintiff’s knowledge or assent for the purpose of obtaining a divorce, the court shall not grant the divorce.

Examples of collusion might include spouses agreeing to stage evidence of adultery, or agreeing to testify falsely about grounds or about a separation date, in order to speed up the divorce. Apart from this bar, false testimony carries its own serious consequences. Agreeing on property, custody and support is not collusion; settlement of those issues is encouraged. What is barred is manufacturing or agreeing to the grounds themselves.

Defense 5: Provocation or Justification

For some grounds, the conduct of the accusing spouse may be relevant. For example:

• Physical cruelty. A spouse may argue that they acted in self-defense, or that the incident did not involve the kind of danger the ground requires.
• Desertion. A spouse who left may argue that leaving was justified by the other spouse’s misconduct, or that the other spouse agreed to the separation.

These arguments are general and fact-dependent. They do not excuse violence, and courts look carefully at each situation. If there are safety concerns on either side, protection should come first.

Responding to the Complaint: Deadlines and Counterclaims

Under SCRCP Rule 12(a), a defendant generally has 30 days after service to file an answer. The answer is where you admit or deny each allegation and raise defenses. It is also where you may file a counterclaim, asking for your own relief, such as a divorce on a different ground, custody, support or property division. The plaintiff then generally has 30 days to reply to a counterclaim.

Many defendants deny a fault ground while counterclaiming for divorce on the one-year separation ground, either immediately if the year has already passed or once it is satisfied. This can allow the divorce to move forward without a finding of fault. Our guide on responding to a divorce complaint walks through the answer and counterclaim, and our guide to the one-year separation rule explains the no-fault ground.

What a Successful Defense Does and Does Not Do

Defeating a fault ground does not necessarily keep you married. Your spouse may still obtain a divorce on another ground, including one-year separation. What a successful defense may do is:

• prevent a finding that triggers the adultery alimony bar;
• keep fault from weighing against you in alimony or property division;
• change the timing of the divorce; and
• affect how the court views the overall case.

No attorney can guarantee how a judge will weigh contested evidence. What you can do is respond on time, preserve your evidence and make informed decisions.

Practical Steps if You Are Accused of Fault

1. Calendar the answer deadline as soon as you are served.
2. Do not contact the other side’s witnesses or post about the case online.
3. Gather evidence that supports your account, such as calendars, receipts and messages you lawfully have.
4. Write down the history, including any reconciliation or forgiveness after the alleged conduct.
5. Avoid new conduct that could be used against you, such as starting a new relationship before alimony issues are settled.
6. Consult a family law attorney about defenses and counterclaims.

For every stage of the process, see the South Carolina Divorce Guide.

Frequently Asked Questions

Can I stop my spouse from getting a divorce in South Carolina?

You may be able to defeat a particular fault ground, but your spouse can generally still obtain a divorce on the one-year separation ground once that requirement is met.

What is condonation?

Forgiveness of known misconduct, usually shown by resuming the marriage with knowledge of it. Later misconduct may revive the original ground.

Does recrimination block a no-fault divorce?

No. S.C. Code § 20-3-10(5) says recrimination is not a bar to a divorce on the one-year separation ground.

What is collusion in a divorce?

Spouses working together to fake or arrange grounds for divorce. Under § 20-3-20, the court shall not grant a divorce obtained by collusion.

How long do I have to respond to a divorce complaint in SC?

Generally 30 days after service. Your answer is where you raise defenses and any counterclaims.

Sources

• S.C. Code Title 20, Chapter 3 (§§ 20-3-10, 20-3-20, 20-3-80, 20-3-130, 20-3-620)
• South Carolina Judicial Branch: South Carolina Rules of Civil Procedure and court rules
• South Carolina Judicial Branch: Opinions (adultery proof standard; condonation and recrimination case law)