South Carolina Divorce Procedure: What You Need to Know About Navigating Your Divorce
South Carolina divorce procedure can be challenging. Before the Family Court can have the authority to grant a divorce or separation, it must have jurisdiction as defined in South Carolina Code. Ann. § 20-3-30. The person filing for divorce must have resided in South Carolina for at least one year prior to its commencement. If the person is not a resident of South Carolina, the other party must have resided in this State for at least one year prior to the filing, or both parties must have been residents of South Carolina for at least three months prior to the filing of the divorce action.
Grounds For Divorce
- Physical Cruelty – Physical Cruelty is defined as actual physical violence that endangers one’s life or health, and renders the continued cohabitation unsafe. The court requires proof of more than one act in violence, unless that one act is severe. Sometimes this is difficult to prove because there are no witnesses to the abuse. It is important to note that mental and emotional abuses are not grounds for divorce in South Carolina.
- Adultery – Adultery is defined as the sexual intimacy with a person other than your spouse. It requires showing proof of both the romantic inclination, and the opportunity to commit a sexual act. This is typically proven by circumstantial evidence, such as what may be collected in some instances by a licensed private investigator. Adulterous behavior can be heterosexual or homosexual in nature.
- Habitual Drunkenness – Habitual Drunkenness is defined when one of the parties engages in the regular, routine consumption of a substance to the point of intoxication. This can include alcohol, illegal drugs, or excessive legal drug use. Habitual drunkenness is generally proven by third-party witnesses who have observed the substance abuse and resulting actions.
- One Year Separation – “No Fault Divorce” – This ground for divorce requires the parties live in separate residences for 365 days. The court does not count sleeping in separate bedrooms in the same house as part of the separation. The physical separation must be corroborated by a third party at the divorce hearing.
- Desertion – Desertion is defined as when the parties have not lived together for one year or more; there is a lack of intent to resume cohabitation; and an absence of consent by one spouse to the separation and absence of justification for the cessation of cohabitation. This cause for divorce is rarely used in modern instances.
Filing For Your Divorce
To begin the process, one spouse (“Plaintiff”) files a Complaint for Divorce. After it is filed, it must be served on the other spouse, (“Defendant”) along with a Summons . The Summons informs the Defendant that a divorce action has been brought by the Plaintiff, and he or she must accept and answer the Complaint for Divorce. After the Defendant is served, he or she must file an Answer to the Complaint for Divorce. The Answer provides the Defendant with an opportunity to state any complaints or defenses he or she has related to the claims in the Complaint. If the parties are able to reach an agreement, they can sign a Settlement Agreement to divide the property, assets, debts, and liabilities. The Divorce Agreement can also settle matters of child support, custody, and visitation.
If the parties cannot agree on a settlement, they begin the litigation process which can be complicated and time consuming. It is critical at this stage to consider hiring a Divorce Attorney to assist with the case.
Temporary Motion Hearing
Most contested divorce cases begin with what is known as a hearing on either party’s request in the form of a Motion for Temporary Relief. This is perhaps the most critical phase of any Family Court action. At this hearing, the Court addresses all issues raised that require an interim decision (until the case can either settle or go to trial). Issues determined at this hearing can be the most critical such as custody of children, visitation, restraining orders as to assets, use and possession of the marital residence and much more. At a temporary hearing, there is usually no live testimony but each party is allowed to present written testimony in the form of affidavits. Sometimes, the Divorce Attorneys will have the opportunity to argue their client’s position, other times they will not. The Family Court Judge has the opportunity to render a decision at the hearing the often remains in place until a final settlement or final merits hearing.
Final or Merit Hearing
The final hearing is known as a final or merits hearing. The Divorce Attorneys will present witnesses to testify regarding the facts of each case. Both sides are allowed equal time to testify and present evidence to argue their case. A final hearing can be very brief, if there are few issues to resolve, or, it can last for a week or longer if the case is more complicated.
Separation vs. Divorce
A legal separation does everything that a divorce does, except dissolve the marriage itself. All issues pertaining to asset-debt distribution, child custody, visitation, and spousal support are decided in the same manner and with the same finality as they would be in a divorce. However, the parties are still married, therefore they cannot yet remarry, can still be sued for divorce, and their tax filing status will be affected as well.
How Long Does it Take to Finalize My Divorce?
While each case is different, there are several factors to consider when trying to determine how long the divorce process will take. The length of time largely depends on whether the divorce is contested or uncontested. A contested divorce occurs when there is a dispute involving child custody, child support, visitation, alimony, or the division of property or assets. These divorces can sometimes last over a year. The court allows the parties to engage in discovery to obtain evidence from each side. Parties will request answers to written questions (interrogatories), request documents to be produced, and participate in depositions and subpoenas. Discovery alone can take months to complete.
Contested Divorce vs. Uncontested Divorce
If the parties can agree on the custody, support, property, and financial issues, then the divorce will be “uncontested.” Generally, uncontested divorces involve a separation period of at least one year. Once the parties file the required paperwork and a final hearing date is scheduled, the divorce can be finalized.
How to Prepare to Meet With Your Divorce Attorney
Being prepared in your initial meeting with your Divorce Attorney can go a long way towards making sure that your Family Law Attorney has all of the information necessary to get started on your case. If you are facing a divorce in South Carolina, you should begin collecting all of your important legal documents as soon as possible. Read more about what you need to fill out prior to meeting with one of our Divorce Attorneys.
It does not matter what the grounds for your divorce are or whether it is contested or uncontested, it essential that you have competent representation. You need a Divorce Attorney who understands South Carolina divorce procedure from the very beginning. We understand what is at stake, let our experience stand on your side.