Domestic violence includes causing or attempting to cause physical harm to a spouse or former spouse or another household member. In addition to imprisonment, a domestic violence conviction can have serious consequences in a South Carolina divorce case. If an individual is convicted or pleads guilty to domestic violence, that person may not later claim that there is no physical abuse in a divorce case. Therefore, the negative effects of domestic violence on divorce can be substantial and can have a lasting impact.
Domestic Violence And Divorce
In South Carolina, a divorcing party can allege physical abuse as a fault-based reason for divorce. However, there is no guarantee that a domestic violence conviction will automatically qualify for a fault based divorce. In order to be a reason for divorce, the spouse alleging abuse must prove either physical injury or a substantial risk of death or serious bodily harm. An example of substantial risk of death is if an individual shoots a gun at his spouse, but misses.
A spouse alleging physical cruelty in a divorce case can file a request for an Order for Protection with the court. After being served with a copy of the Order for Protection, the alleged abuser will have a court hearing. At that time, the court may issue an Order regarding child custody and visitation, personal property, the residence, contact with the minor child and spouse and restrictions on the use of joint bank accounts. The Order for Protection hearing is similar to a trial. Information used during a family court Order for Protection hearing can be used by the prosecutor to prepare for a domestic violence trial.
A spouse who alleges physical abuse in a divorce case must prove that the abuse happened by a preponderance of the evidence. This is lower than the requirement for a domestic violence conviction. In order for an individual to be convicted for domestic violence, the prosecutor must prove guilt beyond a reasonable doubt. Therefore, it is easier to prove that a person committed physical cruelty in a South Carolina divorce case than in a domestic violence case.
There is a good chance that parent who is arrested for domestic violence will be viewed negatively by the family court when it’s time for the judge or jury to make decisions regarding custody, child support, alimony and property division. That is why some spouses make false claims of physical cruelty in order to gain an advantage in their divorce case. However, the false claims can certainly backfire when the truth is revealed.
Can Our South Carolina Attorneys Help You?
An experienced domestic violence attorney in South Carolina is the best resource for protecting your rights when you are accused of domestic violence. Contact Greenville Defense Attorney Aaron De Bruin to speak to an attorney today.
