Divorce in South Carolina

A divorce may be granted either on a “no-fault” or “fault” basis. A no-fault divorce requires that the parties live separate and apart, without resumption of cohabitation, for a period of one (1) year. Sleeping in different beds is insufficient.

A fault divorce may be granted upon proof of any of the following:

– adultery;
– physical cruelty;
– habitual drunkenness and drug abuse; and,
– desertion (please note that desertion has essentially been discarded as a fault basis in South Carolina).

Each of these grounds for divorce has specific proof requirements associated with them.

Just because you can prove fault as the basis for the breakup of your marriage, doesn’t always mean you should.

There can be real value in delaying the pursuit of a fault-based divorce in favor of attempting an amicable resolution of your case. An amicable divorce may have a variety of benefits, including the reduced cost to you, improved co-parenting of your children, and a reduction of stress.

If an amicable resolution is impossible, a fault-based divorce may be of some benefit to you. The fault is a factor in determining custody of the children if such behavior impacted their well-being. Fault may be a factor in the overall division of property (albeit, a generally small factor).

Perhaps of primary importance is that a spouse found to have engaged in adulterous conduct is forever barred from receiving alimony. This can and does have a huge impact on marital litigation in this state.

South Carolina does not recognize “legal separation.” Instead, the South Carolina Family Courts issue Orders of Separate Maintenance and Support, which provide specific details regarding parties’ child custody, visitation, and support arrangements, as well as maintaining marital assets and paying marital debts, until the case is resolved at a final hearing or trial. An Order of Separate Maintenance and Support is a temporary order; it does not cover the issue of divorce, and it does not end the parties’ marriage.

A common misconception is that “abandoning” the house means that you forfeit legal interest in the property. Commonly, this misconception is used by one party as a threat in order to keep them in the home, and by extension, the marriage. It is false — leaving your home will not cause you to lose your interest in that home.

There are many things to consider in deciding whether to move out of the marital home.

If you are being physically abused or threatened, relocation is almost always advisable. If your children are being exposed to intolerable behavior (such as open adultery, or drug and alcohol abuse), relocation is almost always advisable. You should also consult with an attorney immediately to discuss options for placing you back in the home if you wish to return. If such relocation is impossible, you may wish to consult with an attorney about the possibility of filing an emergency action requiring your spouse to vacate the marital home. This option is only available in cases where marital fault can be established.

Less clear are situations where neither party is necessarily at fault, but the marriage has become intolerable for one reason or another. If your spouse will not leave the home, and you wish to seek a divorce, it is likely that you will need to establish residence elsewhere for purposes of filing an action in Family Court. Judges routinely dismiss cases filed by parties who still reside together for “lack of jurisdiction.” Before making a decision about moving, however, you should always consult with a Charleston divorce lawyer.

In general, both parties to a divorce must have been residents of South Carolina for a period of three (3) months prior to commencement of a divorce action.

If the defendant is not a resident of South Carolina, the plaintiff must be a resident of South Carolina for one (1) year prior to commencement of a divorce action. If the plaintiff is a non-resident, the defendant must be a resident for one (1) year prior to commencement.

Please note these rules apply only to divorce. Jurisdiction may rest with another state for purposes of division of property or determining custody and support of children. Consult a Charleston divorce attorney for clarification.

Just as every marriage is different, so too is every divorce. In general, though, we describe the different processes in terms of “Option A” and “Option B.”

Option A is preferable in cases where our client wishes to make the process as amicable and cooperative as possible. We make direct contact with our client’s spouse, inviting him or her to dialogue with us directly, or to have an attorney contact us in an effort to resolve any differences by agreement. We then negotiate the terms of a comprehensive, written agreement, which both parties then sign. That agreement is then presented to the Court for its approval and a judge’s signature. Once approved by a judge, the agreement becomes enforceable by the Court and immediately goes into effect. Assuming full resolution of disagreements, the only remaining action that the parties will need to take is to actually be divorced, which can take place at a later date.

Option B is preferable in cases where our client is satisfied that his or her spouse will not cooperate on issue resolution, or where there is some other reason to not delay Court involvement in the matter (protection of children or assets, fear of abuse, etc.). Under these circumstances, we will immediately file a Summons and Complaint in the appropriate Family Court, set an initial hearing date, and have the spouse personally served with these court documents. We will then begin preparations for this initial hearing in close cooperation with our client. The initial hearing, or Motion for Temporary Relief, gives the Court an opportunity to award custody and support, use and possession of the marital home, set appropriate restraining orders, and grant other needed relief to the parties for the period of time while the case is pending. Following the issuance of the Court’s Temporary Order, we will generally begin the process of building our case for mediation or trial, gathering evidence through the discovery process, interviewing witnesses, taking depositions, all as needed. The case will eventually be scheduled for mediation (discussed in more detail on this site) and ultimately trial if no agreements can be reached.

All cases are different, but you should expect this process to last not less than a year.

The two main ways a Charleston divorce case can be completed are “by agreement” or “by trial.”

The parties may reach an agreement on all issues in the case at any time, either by resolving their differences between themselves, through attorneys negotiating an agreement or by reaching an agreement through the mediation process. Most Family Court litigants begin their case believing no hope of consensus exists; in fact, the majority of Family Court cases are concluded in this fashion. Resolution by agreement is often less stressful, less expensive, and less time-consuming.

A case may also be resolved by trial, spending a day, a week, two weeks arguing his or her case to a judge, who makes final decisions on all the issues presented. Trials can be painful affairs in more ways than one: they can be breathtakingly expensive, traumatic for all involved, and conclude with results that are unsatisfactory to all. Unfortunately, a trial cannot always be avoided and is in fact an absolute necessity in some matters.