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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12620
Experience:  Attorney experienced in all aspects of family law
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I need to know if I can file for a fault based divorce due

Customer Question

I need to know if I can file for a fault based divorce due to my husband beginning a reltionship after separating signing a separation agreement
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: SC
JA: Have you talked to a lawyer yet?
Customer: No. we were going to file after a 1 year continuous separation
JA: Anything else you want the lawyer to know before I connect you?
Customer: nope thats about it!
Submitted: 7 months ago.
Category: Family Law
Expert:  Brandon M. replied 7 months ago.

Good day, my name is Brandon. I am a licensed attorney. It's entirely possible for an "at fault" cause to arise after separation and before 1 year has passed. Starting separation doesn't mean that fault can't arise during the separation -- the parties are still legally married during that year, and the entire purpose of mandating separation before divorce is to make sure that reconciliation isn't possible.

Expert:  Brandon M. replied 7 months ago.

"Being in a relationship" isn't enough, though, unless there's actual adultery. Do you know if your husband has actually consummated his new relationship?

Customer: replied 7 months ago.
he has consummated the new relationship. He claims that because I signed a separation agreement, that I cannot file for a fault based divorce. We have already settled all of our asset and any issues pertaining to marital property
Expert:  Brandon M. replied 7 months ago.

The issue with having signed a separation agreement is that it usually prevents adultery from being considered for purposes of alimony or separate maintenance and support. For example, if a husband commits adultery during the marriage, that usually precludes him from collecting spousal support. However, if the adultery occurs after the signing of a separation agreement, the adultery will not impact a right to collect spousal support.

Expert:  Brandon M. replied 7 months ago.

Does that make sense?

Customer: replied 7 months ago.
I think so. Can you review the attached document just to be sure? It can still be considered adultery even though I signed this? I do not care about any type of spousal support or alimony and I thought that was was the separation agreement was for. Not to make him exempt from committing adultery right?
Expert:  Brandon M. replied 7 months ago.

I'm glad that you provided that. What sticks out to me in this agreement is the following clause: "we mutually intend this agreement to be a final disposition regarding the marital issues addressed herein..." Whether a divorce is "at fault" or "no fault" is generally considered a legal "marital issue". Your husband has an argument there.

Customer: replied 7 months ago.
I see. In your opinion, do you see this holding up in court? Given South Carolina does not recognize legal separation, I was under the impression that separated or not, adultery was still possible. I just want to be able to divorce him on the grounds of fault so that it may be expedited, not to gain anything.
Expert:  Brandon M. replied 7 months ago.

Legal separation is different from merely having a separation agreement. In states that recognize legal separation, the legally separated married parties are recognized as having a distinct and separate legal status from one another. A separation agreement is more like a contract -- the state doesn't deem the parties separated, but they have contractually agreed to certain things that function like a legal separation. Adultery is still possible, but if the contracting parties have agreed to treat their separation as no-fault, that would generally trump any "fault" that arises during the separation. Does that make sense? Incidentally, I definitely understand wanting to get this behind you sooner than later-- have you considered talking to him about reaching a agreement that allows for "at fault" divorce but has no other impact on either of your legal rights?

Customer: replied 7 months ago.
He is very unwilling to accept any type of fault even though he has nothing to lose monetarily speaking. It does state that we agreed to live apart "as if we were single". So, since the agreement says that we had resolved all marital issues although we will still remain married for a year, that I cannot divorce him due to adultery after the fact?
Expert:  Brandon M. replied 7 months ago.

Because the nuances of every case are different, this information should not be relied upon as complete or advice without consulting in person with an attorney who has been able to review your entire case. I don't mean to be overly cautious, but professionally I need to say that just in case there's something out there that I'm missing. That said, the resolution of all marital issues generally means that all marital issues, including the legal basis for a divorce, are resolved.