If you are considering a divorce in South Carolina, where do you begin? Laws can vary significantly from one state to the next. You will want to understand the criteria for filing, residency requirements, your options for grounds and how they can affect your settlement outcome, and the legal procedures and steps involved.
Let’s take a step-by-step look at divorce in South Carolina so you go into yours with a firm understanding of the process.
What are the Residency Requirements for Seeking a Divorce in South Carolina?
Before you can file for divorce in South Carolina, you must fulfill residency requirements. These will depend on whether one or both spouses live in the state:
- If both you and your spouse live in South Carolina, either spouse can file for divorce after living there for at least three months.
- If only one of you lives in South Carolina, that spouse must have lived in the state for at least one year before filing for divorce.
- If the filing spouse has not lived in South Carolina for one year, the other spouse must have been a resident of South Carolina for at least a year.
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Are There Separation Requirements in a South Carolina Divorce?
To file for a no-fault divorce in South Carolina, you and your spouse must have lived separately and apart continuously and uninterrupted for at least a year. Filing for a fault-based divorce does not require a period of separation.
What is the Reason for or “Grounds” for Your Divorce?
To file for divorce in South Carolina, you must have a legally recognized reason for filing. These are known as divorce “grounds.” In South Carolina, there are both no-fault grounds and fault-based grounds.
If you are considering a no-fault divorce where you and your spouse want to go your own ways and neither of you is focused on blaming the other for the end of your marriage, the only requirement you will need to meet to file is your one-year separation.
But you may be considering filing for divorce with fault-based grounds. In South Carolina, fault-based grounds for divorce include:
- Adultery – Your spouse has been involved in an extramarital relationship, causing the end of your marriage.
- Physical cruelty – Your spouse has engaged in acts of domestic violence or physical abuse, causing you concern for your safety.
- Habitual drunkenness or drug abuse – Your spouse has a chronic alcohol or drug problem that makes your marriage intolerable.
- Desertion – Your spouse has abandoned you for a period of one year or more. Because separation for one year allows for a no-fault divorce, grounds for desertion are not frequently used in divorces today.
It is important to remember that an accusation is not enough to support fault-based grounds. The court will require evidence to support your claim in order for your divorce to be successful using these grounds.
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Filing for Your Divorce
Before filing for divorce, you will prepare your divorce complaint. This is the legal document formally initiating your South Carolina divorce. Your complaint will ask for details regarding you and your spouse, such as names, addresses, the date of your marriage, confirmation of your residency, and the grounds for your divorce.
Your complaint will also ask for information about your minor children, and what your wishes are for custody arrangements, property division, alimony, and child support.
After you have prepared your complaint, you will file it
- In the county where you and your spouse lived together,
- In the county where your spouse lives,
- Or in the county where you live, if your spouse does not reside in South Carolina.
If you are working with a South Carolina family law attorney, your lawyer will prepare your complaint and file it with the appropriate court on your behalf.
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Serving Your Complaint
Once your divorce complaint has been filed, a copy and a summons must be served to your spouse. A summons is the official notification that you have initiated a divorce and offers your spouse the opportunity to respond to your complaint.
You can serve your spouse through various means, including personal service through the sheriff’s office, a professional process server, in person, or by certified mail, requesting a return receipt.
Within ten days of the paperwork being served on your spouse, you must file proof of service with the court. This proof could be an Affidavit or Service from the sheriff’s office or process server, the return receipt from the certified mail delivery, or an executed Acceptance of Service form signed by your spouse voluntarily agreeing to accept the service without the formality of a sheriff or professional process server.
The court requires proof of service, and your case cannot proceed until you can prove that your spouse has been properly served.
What Happens if You Can’t Locate Your Spouse to Serve Them?
If you cannot locate your spouse to serve them with divorce papers, the court will offer you some alternatives, but you first must make a diligent effort to find them.
This means taking all reasonable actions, such as contacting their family members and friends, searching public records, voter registrations, and Department of Motor Vehicle records, or sending a letter to their last known address or place of work. You must document these efforts as the court will want to know you made a sincere effort to locate your spouse.
Once these efforts have been made, you can file a motion with the court asking for service by publication. This involves publishing a notice in a newspaper specified by the court.
After 30 days, if your spouse hasn’t responded, you can request the court issue a default judgment granting a divorce without your spouse’s participation.
Your Spouse’s Response
After your spouse has been served, they will have 30 days to respond to your divorce complaint if they live in the state of South Carolina. They will have 35 days to respond if they live in another state.
Your spouse may respond in several different ways:
- If your spouse agrees to your divorce terms, they will file an answer reflecting their consent. When spouses agree to all terms of a divorce, it is considered an uncontested divorce.
- If your spouse does not agree to the terms you have set out in your complaint, they may file a counterclaim making their own demands or raising additional issues. When you and your spouse cannot agree to the terms of your divorce, your divorce will be considered contested.
- If your spouse does not respond within the required timeframe, you may request a default judgment from the court, asking to proceed with the divorce according to your terms without your spouse’s input.
Other Things to Consider
In many cases, immediate issues will need to be resolved while your divorce is pending. You may request a temporary hearing allowing the court to issue temporary orders for immediate needs such as
- Custody and visitation of your children
- Child support
- Spousal support
- The use of the marital home
- Who will pay ongoing bills and expenses until a final judgment is issued
Furthermore, the court may require mediation before your case proceeds to trial. During mediation, you and your spouse will work with an impartial third party to attempt to reach an agreement on your contested issues. If this can be done, an agreement will be submitted to the court for approval and become part of your divorce decree.
Discovery
In a contested divorce, you, your spouse, and your attorneys will engage in the discovery process. This is where both sides gather information about each other’s assets, finances, and other relevant issues. Discovery allows both sides to be fully informed about each other’s financial and living situation before attempting to reach a settlement or going to trial.
Some methods used during the discovery process include
- Interrogatories, or written questions, that require detailed responses by the other spouse
- Depositions, or oral questions conducted under oath, with oral responses by the other spouse
- Requests for production, which are formal requests for specific documents such as tax returns, bank statements, or other financial documents
Settlement
At any time during this process, you and your spouse may come to an agreement about the terms of your divorce with the help of a mediator or your attorneys. If so, the agreed-upon terms will be submitted to the court for approval. The court will incorporate your settlement into your final divorce decree if approved.
Your Final Hearing
If you and your spouse have reached an agreement on all issues regarding your property division, child custody, child support, and spousal support, your final hearing will be a relatively brief formality where you will confirm that you agree to the terms of your divorce. A divorce decree incorporating these agreements will be issued ending your marriage.
If you and your spouse still cannot reach an agreement on all the issues concerning your divorce, your final hearing before the court gives both sides the opportunity to present their testimony and evidence regarding any unresolved issues. After hearing both sides, the judge will make the final decision regarding your divorce terms and issue a divorce decree.
The Importance of Getting Skilled Legal Representation
Divorce can be complicated and have many legal and financial consequences that will affect your future. Working with an experienced Columbia, South Carolina family law attorney can be critical to ensuring your best outcome.
At Melone Hatley, P.C., our skilled South Carolina divorce attorneys are here to guide the process so you can have peace of mind that your wishes and best interests have been considered each step of the way.
If you are considering a divorce or already in the process of a divorce in South Carolina, we can help. Contact us to schedule a free consultation.
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