South Carolina men’s divorce attorneys provide answers to frequently asked questions with regards to the divorce process and divorce laws in South Carolina.
What are the grounds for divorce in South Carolina?
South Carolina recognizes no-fault and fault based grounds for divorce. For a no-fault divorce, the parties must have lived separate and apart without cohabitation (not just in another room) for over one year.
For a fault-based divorce, South Carolina recognizes (1) Adultery, (2) Habitual Drunkenness or Drug Use, (3) Physical Cruelty, and (4) Desertion. However, it should be noted that Desertion is rarely used as a ground for divorce since the parties must have lived separate and apart without cohabitation, just as is the requirement for a no-fault one-year continuous separation divorce. Parties may* obtain a divorce 90 days after the date of filing if a fault-based ground exists and the burden of proof is met to show that the fault-based ground exists.
*Parties may be able to obtain a divorce 90 days after the date of filing if ALL issues in the case have been resolved on a final basis. It is always important to note that attorneys do not have control over the court docket scheduling.
What is a divorce going to cost me? Can I afford it?
The cost of your divorce is determined on a case by case basis. It is important to look at your legal representation for your divorce as an investment to protect yourself, your children and your finances in the future.
Do I really need to hire an attorney?
Hiring an attorney is better than trying to navigate through the divorce process on your own. Although you are not required to have an attorney in South Carolina, it is not a good idea to attempt to handle your divorce by yourself. The advice and knowledge of an attorney is crucial to protecting your interests in the future.
Does South Carolina grant divorces based on marital fault?
Yes. South Carolina recognizes (1) Adultery, (2) Habitual Drunkenness or Drug Use, (3) Physical Cruelty, and (4) Desertion.*
Marital Fault is also a factor that may be taken into consideration in regards to equitable division of marital property and spousal support/alimony.
*Desertion is rarely used as a ground for divorce since the parties must have lived separate and apart without cohabitation, just as is the requirement for a no-fault one year separation divorce.
Can I get maintenance in South Carolina or will I have to provide maintenance to my spouse?
In South Carolina, the following statutory factors in determining whether a party should or should not be awarded spousal support. See S.C. Code § 20-3-130(C)(1-13).
(C) In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:
(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
(2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;
(4) the employment history and earning potential of each spouse;
(5) the standard of living established during the marriage;
(6) the current and reasonably anticipated earnings of both spouses;
(7) the current and reasonably anticipated expenses and needs of both spouses;
(8) the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
(11) the tax consequences to each party as a result of the particular form of support awarded;
(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
(13) such other factors the court considers relevant.
The court may or may not award spousal support/alimony to a party after taking the following factors into consideration.
Can I change my name at the time of divorce in South Carolina?
Yes. You may change your name at the time of divorce. You must request a name change in your pleadings to put the court on notice that it is an issue before the court. At the time of divorce, you must testify under oath that you are requesting a name change for personal reasons and answer a series of questions that verify that you are not changing your name to avoid criminal charges, bankruptcy, a sex offender registry, etc. See S.C. Code § 15-49-20.
Can I get an annulment in South Carolina?
South Carolina may allow a marriage to be annulled if at least one of the following factors is met:
- Duress – One spouse was threatened or coerced into the marriage
- Fraud – One spouse lied or deceived the other spouse about an essential aspect of the marriage
- Bigamy – One spouse is still currently married to another person
- Incest – The spouses are closely blood-related
- Mental incompetence – One spouse did not have the mental competence to consent to the marriage
- Underage – One or both spouses are under the age of 16
- No cohabitation – The spouses never lived together (this may include lack of consummation of the marriage)
*It is important to note that these factors are not “cut and dry.” Several additional factors and circumstances may be taken into account as to whether an annulment is granted. Family Court judges may exercise broad discretion in their decisions after considering the specific facts of a case and relevant law. Annulments essentially deem the marriage void as if the marriage never happened, whereas a divorce ends a legally valid marriage.
When can I file for divorce in South Carolina?
You may file for divorce once you have a ground for divorce (see grounds for divorce discussed above).
However, in South Carolina, you may file a Separate Support and Maintenance Action before you have a ground for divorce. The main requirement for a Separate Support and Maintenance Action is that the parties are living separate and apart without cohabitation. For example, you may not have a fault-based grounds for divorce, but you and your spouse have been living separate and apart without cohabitation, but you have not reached the one-year bench mark as required in a no-fault divorce. In this example, a Separate Support and Maintenance action may be filed to address the same issues involved in a divorce action. For further information, please schedule an initial consultation with our South Carolina office to discuss the importance of filing an action as soon as possible.
When is my case going to be over?
The duration of your case depends on many factors and is specific to each case. In general, if the parties come to an agreement and settle all issues quickly, then typically your case will not last as long as it would if your case goes to trial. However, there are several other factors that contribute to the how long your case will be ongoing that you should address when you schedule an initial consultation with our South Carolina office.
Do I have to go to court?
Yes. You should be present in court for your case. There are certain circumstances where you may be able to authorize your attorney to attend on your behalf, but in general you should be present in court.
If attempts to serve my spouse do not work, what is my next step?
In general, if several meaningful attempts have been made to properly serve your spouse (for example, service at their last known address, job, etc.) have failed, then the process server may submit an affidavit of due diligence. At that point, service by publication can be run in the local newspaper for 30 days. If your spouse does not respond within that time period, then the case can proceed accordingly.
*Process service is a very important part of the case so that all parties are given notice of the lawsuit. However, if after many attempts fail to locate your spouse, this does not necessarily mean your case cannot move forward.
At what point during the process can a spouse remarry or start dating?
After the final divorce decree is signed by the judge. While many people believe that once they are separated from their spouse they are free to start dating again. There is no “legal separation” in South Carolina. You are still married to your spouse until the judge signs your divorce decree. On the same note, you are still married, so until you are divorced you cannot marry another person as it would constitute bigamy.
If you start “dating” while you are still married, there is an argument for adultery against you. This could work against you in terms of equitable division of assets, as it is a factor the court considers (see above). More importantly, if you are a candidate for spousal support/alimony, even the perception that you are “dating” or having sexual relations while you are still married could bar you from receiving spousal support/alimony.
What if my spouse does not want the divorce?
Your spouse cannot deny you a divorce. If you meet one of the South Carolina statutory grounds for divorce, then you can proceed whether your spouse is happy about it or not. That being said, all issues must be resolved before a final divorce decree can be issued.
Do the other issues – support, custody, alimony, and property – have to be decided before the divorce is final?
Yes. All issues must be resolved before a divorce is finalized in general. There are some circumstances where judges will bifurcate issues (divide the issues), but this is not very common because there are many legal pitfalls that could arise. You should contact our South Carolina office for further clarification of these potential pitfalls.
Although these issues should be resolved on a final basis in a divorce decree, matters involving child custody, child support and alimony may be modified upon the showing of a substantial change in circumstances after the divorce decree was finalized. The division of the marital estate is permanent after the divorce decree (or Separate Support and Maintenance Final Order) is in place.*
*In some cases issues may be appealed or reconsidered. Please schedule a consultation to discuss the specific facts of your case.
How long do I have to live in South Carolina to obtain a divorce?
In short, if both parties have lived in South Carolina for over three (3) months, then South Carolina has personal jurisdiction of the parties. If one of the parties is out of state, and the other party lives in South Carolina, the South Carolina resident must have lived in South Carolina for a period of over one year. Other factors may change this answer so it is important to address specific jurisdiction issues with your attorney.
After I file for divorce, do I have to continue to live in South Carolina?
In general, no, if jurisdiction was established in South Carolina when you filed. Certain case-specific factors/issues may change this answer so it is important to contact our South Carolina office to address this issue.
What if I am in the military and out of state?
If you or your spouse is a resident of South Carolina, then South Carolina may have jurisdiction (see above). This is an issue you should address in your initial consultation in our South Carolina office.
What forms do I need to file for a divorce in South Carolina ?
You will not be responsible for filing anything on your own while you are represented by Cordell & Cordell. You will be properly advised and informed of your case and your attorney will let you know what certain documents you will need to provide to your attorney to assist in your litigation.
How and where is a divorce complaint filed in South Carolina?
In South Carolina, a divorce complaint is filed in the Clerk of Court’s office where jurisdiction is proper. Typically the complaint is filed in the county where the Defendant resides. Either the attorney, the attorney’s staff, or a courier will file the complaint with the Clerk of Court in the respective county.
How do I serve the divorce complaint on my spouse? How long do I have to wait to receive my divorce?
You will not be the one to personally serve a divorce complaint on your spouse. Parties and attorneys representing the parties in a case are not proper process servers. Our firm will take care of the service process. The waiting period to receive your divorce depends on many factors (see above).
How is a divorce granted in South Carolina?
A divorce is granted when all issues in your divorce case have been resolved on a final basis and at least one of the parties has proven that a ground for divorce exists to the court’s approval. Parties may resolve all issues through their attorneys and come to a settlement agreement, or the parties may need to go through mediation to come to a settlement agreement. If the parties are unable to agree on a settlement, the matter will be set for a trial and a Family Court Judge will make a final ruling on the issues after hearing both parties’ arguments/testimony.
What typically happens if I go to court to obtain my divorce myself?
It is unlikely that you will have protected your interests, your children’s interests, and your financial interests. While anyone can look up the law on the internet, the application is much more complicated. It is never a good idea to do it on your own.
How do I prove fault for divorce in South Carolina?
South Carolina recognizes fault-based grounds for divorce and considers marital fault as one of many factors when considering equitable division of the marital estate and spousal support/alimony.
While proof of marital fault is within the broad discretion of the presiding Family Court Judge in your case, the following general elements are needed to prove the following fault-based grounds:
Adultery – To prove adultery, the burden is on the spouse alleging adultery that the adulterous spouse had (a) Opportunity and (b) Inclination to commit adultery.
That being said, it is not necessary to have pictures, video, etc. of the adulterous spouse being caught in the actual “act” of sexual intimacy.
At least, it should be shown that the adulterous spouse had the opportunity to cheat (i.e. were in a private place alone for “opportunity”) and (i.e. were seen affectionate towards each other; kissing, hugging, holding hands for “inclination”). Proof that the adulterous spouse and a paramour spent the night together in a hotel room could be good proof to cover both elements.
Habitual Drunkenness or Drug Use – To prove Habitual Drunkenness and Drug Use, the burden is on the spouse alleging Habitual Drunkenness and Drug Use to show that their spouse’s drinking or drug use contributed to the breakdown of the marriage.
Physical Cruelty – To prove Physical Cruelty, the burden is on the spouse alleging Physical Cruelty. Typically, the abuse must be physical and occur on more than one occasion, but additional factors should be considered. There is case law that addresses specific facts in different cases that can be considered as related to the facts of your case.
Can a couple become legally married by living together as man and wife under South Carolina’s laws (common law marriage)?
South Carolina recognizes Common Law Marriage. The Family Court has broad discretion in considering whether a common law marriage exists. While many facts and circumstances are considered, in general, a common law marriage is recognized when the parties have cohabitated together for an extended period of time and both parties presently present themselves as a married couple. Again, there is not a “cut and dry” answer. You should contact our South Carolina office to receive more information specific to your situation.