Steps To File For Divorce In South Carolina
When people get married, most do not envision it ending in divorce someday. Unfortunately, divorce is a sad reality for many. While most people believe that 50% of all marriages end in divorce, the Center for Disease Control’s (CDC) National Center for Health Statistics shows that while that number was accurate in 2000, the divorce rate has dropped and that approximately one-third of marriages ended in divorce in 2022. Additionally, those numbers are only for first marriages. Second, third, and subsequent marriages each see higher divorce rates than the last. When you have done everything you can to save a marriage, or one spouse has done something so egregious that you know that you cannot forgive it and move on, you may be left with no option but to file for divorce. If you know that you are ready to file, or you have other questions regarding a South Carolina divorce, our experienced divorce attorneys at King Law Offices may be able to provide the support and answers you are seeking. Call (888) 748-KING to schedule a consultation and learn more about filing for divorce in the Gaffney, Greer, Rock Hill, or Spartanburg areas.
Make Sure You Meet the Legal Requirements
The United States legal system sets specific requirements for marriages and divorces, such as residency requirements. This helps to avoid issues such as bigamy or short-term relocation to another location for more favorable conditions. However, it also means that before someone can file for divorce, they must first ensure that they meet all the legal requirements.
Court Jurisdiction
In South Carolina, family court has jurisdiction over separation and divorce, as well as related issues such as alimony, distribution of marital property, and child support, visitation, and custody. The specific family court that has jurisdiction over a divorce case is based on where the couple lives. Each South Carolina county has its own family court.
South Carolina Residency
Like most other states, South Carolina has a residency requirement before someone can file for divorce. The individual filing must have resided in South Carolina for at least one year immediately before filing. Alternatively, if the individual’s spouse has lived in South Carolina for at least one year immediately before filing, the individual may still file. A third option allows individuals to file for divorce when both spouses have lived in South Carolina for at least three months immediately before filing for divorce.
Property Division
Before making a decision to file for divorce, individuals should be aware of how South Carolina distributes property in a divorce. South Carolina is an equitable distribution state. This means that the court will divide marital property equitably, which is not necessarily equally, between the spouses. Equal distribution would divide the assets exactly in half between the two spouses. Equitable distribution in South Carolina seeks to fairly distribute the assets instead. While equitable distribution is often a 50/50 split, the court will consider many factors in determining what is equitable. Some of those factors may include:
- Each spouse’s age, health, and sources of income
- Any prenuptial or postnuptial agreements the couple may have
- Any obligations or rights related to a previous marriage (such as child support for children of a previous marriage)
- Relevant circumstances of each spouse (such as awarding the family home to the parent with primary custody)
Grounds for Divorce
South Carolina does not automatically grant a divorce simply because it is requested. The state requires the couple to have a justifiable reason, which can be fault-based or no-fault. South Carolina Code. Ann. § 20-3-10 indicates that the grounds for a fault-based divorce can be adultery, desertion, habitual drunkenness, or physical cruelty or abuse. These are the only grounds that can be used for a South Carolina fault-based divorce.
A no-fault divorce is one in which the couple agrees that neither party has done anything to warrant the divorce. Many people may have heard of irreconcilable differences. The term is another way of saying no fault. South Carolina does allow no-fault divorces. However, the state requires that the couple be separated and living in separate homes for at least one year before they can file for divorce. A no-fault divorce also requires that the couple has no shared marital property or debt and that they have no children and are not pregnant. If they have shared marital property or debt or have children, the couple must have agreed on all issues related to the distribution of assets and debts and child custody and support.
Prepare and File Necessary Divorce Forms
Once an individual has determined they meet the legal requirements, the first official step to file for divorce is to prepare and file the divorce forms. These forms can be found online at the South Carolina Judicial Branch. Individuals should take note that these forms are for self-representation. If the individual wishes to be represented by an attorney, they should not use these forms and should instead meet with an attorney to draw up the appropriate paperwork.
Preparing the Forms
In South Carolina, there are four documents that must be completed to file for divorce. These documents are the Complaint for Divorce, Summons for Divorce, Family Court Cover Sheet, and Certificate of Exemption. There is additional paperwork, such as financial affidavits or settlement agreements, that will also need to be completed as the divorce progresses, but these four documents begin the process.
Some of these forms require signatures to be notarized. This must be done before the paperwork can be filed. Some courthouses offer notary services, but individuals may want to confirm whether their courthouse does before bringing the completed paperwork in.
Filing the Forms
Once the forms are completed and notarized, the individual will file them with the family court. There is a filing fee associated with filing the forms. The paperwork can be filed in person, and in some cases, individuals may be able to mail the forms with the filing fee. Individuals should contact the family court that has jurisdiction to find out how their paperwork should be filed. Alternatively, if the individual opts to hire an attorney, their divorce attorney will file the paperwork on their behalf.
Serve Your Spouse With a Copy of the Divorce Forms
After the forms have been filed, the next step when an individual decides to file for divorce is to serve their spouse. Serving the spouse means providing the spouse with a copy of the forms that were filed with the courthouse. This is a required legal procedure that gives the spouse official notice that their spouse has filed for divorce and an opportunity for them to respond.
The individual can serve their spouse personally if the couple is on good terms and the spouse agrees to take service from them. If this is not an option, the individual can ask anyone over the age of 18 to give the paperwork to their spouse. They can also hire a process server or pay a fee to the sheriff to have their spouse served. There may be other options as well, for cases such as desertion. If you would like more information on how to serve your spouse with divorce papers, King Law Offices may be able to explore your options with you.
Wait for a Response and Court Hearing
Once the spouse has been served, they have 30 days to respond. This response may be to agree or it may be to contest or file a counterclaim. In rare instances, the spouse may fail to respond at all.
If the Spouse Agrees
If the spouse responds within the 30 days and they agree on how to handle all the associated issues, such as child custody and support and division of assets, the divorce will move forward to a final hearing. This final hearing takes place with the judge, who reviews the agreements, and finalizes all the details. While this is a simpler process because both parties are in agreement, it is important to understand it may still take several weeks or months, depending on how busy the court is with other cases.
If the Spouse Contests or Counterclaims
If the spouse responds within the 30 days but they contest or counterclaim, the case will go to trial. In the trial, both parties will explain what they want and why and the judge will help them to find an agreement. Sometimes what the spouses want is so far apart and different that the judge may be forced to make a decision for them that neither spouse is fully satisfied with, so divorcing couples are encouraged to agree on the issues as much as possible. This trial may be a single hearing or there may need to be multiple hearings.
If the Spouse Does Not Respond
If the spouse does not respond after 30 days, the petitioning spouse can move forward with the divorce. The court will assume that the non-responsive spouse is refusing to participate and will then make default judgements. Default judgments often give the petitioning spouse everything they ask for, so if an individual is served with divorce papers, it is critical that they read and respond to those papers to avoid losing rights and assets.
What Is the Difference Between Contested and Uncontested Divorce?
An uncontested divorce is one in which both parties have agreed to the divorce, even if one party is only reluctantly agreeing, and have also agreed on issues such as division of assets, alimony or spousal support, and child custody, visitation, and support. When the parties are in agreement, the divorce tends to move much more smoothly and quickly.
A contested divorce is one in which at least one issue is not agreed upon. In some cases, it may be that one spouse does not want the divorce and therefore refuses to agree on any issues. In other cases, both spouses may want the divorce but cannot come to an agreement on one or more issues. A contested divorce tends to take longer to resolve as the parties require a judge to help them find agreements.
How Long Does Divorce Take in South Carolina?
The length of time it takes to get a divorce in South Carolina depends on many factors. One factor is how many other cases there are, as the court schedules hearings based on the order in which cases are ready for the next step. Another factor is whether the divorce is contested or uncontested. A contested divorce could potentially take a year or more, depending on how many issues are unresolved and how much arguing the couple engages in.
Many people worry about how long a divorce takes because they are concerned about child support, child custody, or ensuring that a particular asset is not sold or purposely wasted while waiting for the divorce to be final. If a divorce is expected to take some time, a party can file a Motion for Temporary Relief. This motion can result in a judge making temporary decisions on the requested issues. These temporary decisions will remain in place until the divorce is finalized, at which point the decisions in the final divorce decree will be enforced. The decisions in the final divorce decree may be the same as the temporary ones or they may be different.
How Can a South Carolina Divorce Attorney Support You?
Divorce is a complicated legal matter, involving laws, facts, and emotions. Even once the decision to file for divorce is made, there are many decisions to follow that are just as difficult. Whether you are just separating and only exploring the possibility of divorce for the future or have made up your mind and are ready to move forward, at King Law Offices, our compassionate divorce attorneys may be able to provide the support and guidance you are looking for. Call (888) 748-KING to schedule your consultation and explore your options.