By Christie Nicholson, J.D. | Legally reviewed by Rhonda Earhart, Esq. | Last reviewed February 28, 2024
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It’s natural to have questions before you file for divorce. Deciding to end your marriage is a difficult emotional process. Sometimes, it helps to understand the practical side of the divorce process. This enables you to take your mind off the emotional side of your divorce and focus on what you must do to secure a final divorce decree.
Most people contemplating divorce have questions about the following things:
Here, we’ll answer the frequently asked questions people in South Carolina have about divorce. You can also visit the divorce section of Findlaw.com to learn more about the divorce process.
South Carolina has a residency requirement for divorce. You or your spouse must live in the state for at least one year before filing for divorce. However, the requirement is only three months if both parties reside in-state.
The courts aren’t rigorous in enforcing this requirement. You should be fine if you and your spouse have documentation that you lived in South Carolina for the requisite period.
You can prove residency with the following:
You don’t have to submit this proof when you file your divorce petition. You must certify that you meet the residency requirement in your divorce papers. However, if the judge demands proof that you meet the requirement, you will need this documentation.
Some states don’t require you to cite grounds for divorce in your initial complaint. However, South Carolina does.
There are five grounds for divorce in South Carolina:
Most people apply for a no-fault divorce. In these cases, you can cite irreconcilable differences as the grounds for your divorce or a statement that the relationship is irretrievably broken.
South Carolina does offer a no-fault divorce. This means that you don’t have to blame your spouse for the disintegration of the marriage.
As long as you meet the other legal requirements for divorce, you can apply for a no-fault divorce. You must prove that you and your spouse lived separately for at least one year without intervening cohabitation before filing for a no-fault divorce.
South Carolina law does not provide for legal separation. However, the court can issue an Order for Separate Support and Maintenance. You must be physically separated to file for support and maintenance in no-fault situations.
A support order can help prove that you meet the mandatory one-year separation period the courts require to get divorced. However, an Order for Separate Support and Maintenance is not required to obtain a divorce after a year-long separation.
At the hearing for separate support and maintenance, other issues can also be temporarily resolved. These include issues such as who will reside in the marital residence while the case is pending and who will have temporary primary custody of the children.
At any point in the divorce process, you and your partner can sign a separation agreement or marital settlement agreement. This agreement allows you to divide marital property and debt, if any. It may also resolve issues such as permanent alimony, child support, and other legal issues arising out of the marital relationship.
Anybody in a legal marriage can apply for divorce in South Carolina. You must meet the residency requirement. If filing a no-fault divorce, you must also show that you and your spouse have lived separately for at least one year. If filing a fault-based divorce, a waiting period does not apply. Once filed, a final decree of divorce may not be entered until at least 90 days have passed.
You can apply for an annulment if you don’t want a divorce. An annulment is similar to a divorce because it ends the legal relationship. Instead of ending a marriage, an annulment states that the marriage never existed because it was never a valid marriage to begin with.
If you need an annulment, you must file a Complaint for Annulment with the circuit family court for your county. The person who applies for the annulment is the plaintiff. The other party is the defendant. An annulment is different from a divorce. With a divorce, the filing party is the petitioner, and the other spouse is the respondent.
You must live in South Carolina for at least one year to receive an annulment.
No two divorce cases are the same. Divorce attorneys have handled cases that they resolve in a matter of months. Other times, it can take more than a year to get your final divorce decree.
It depends on the complexity of your case and the number of cases on the family court docket. With the divorce rate being what it is, the courts receive an incredible number of petitions. This can impact how long it takes for the family court judge to hold your final hearing.
Another factor that impacts how long it takes for your divorce to become final is your spouse’s attitude. It may not take long if they agree to the significant issues, such as separate maintenance, custody of the minor children, and property division. However, if they argue about the terms of your divorce, it can take quite some time.
In general, you can complete an uncontested divorce in less than a year. Fault-based divorces can take a lot longer. For example, if you have to prove marital misconduct or other evidence of fault, it could take a year or more.
Waiting for your contested divorce to become final can be frustrating. The best thing to do is to trust your divorce lawyer. A strong attorney-client relationship will help your attorney negotiate a fair marital settlement agreement. If you and your spouse aren’t on good terms, there may be little point in negotiating directly with them. Let your attorney deal with their lawyer instead.
When you file your complaint for divorce, you may hope for things to move at a rapid pace. This doesn’t always happen. Your spouse will have 30 days to file their answer. Expect a few months for both sides to conduct discovery, which is the process where both parties exchange records and other relevant evidence. Negotiating the terms of your divorce may take several months.
Once you file your divorce action, the court may require you and your spouse to attend mediation. This is where an impartial third party meets with the spouses and their lawyers. The mediator will try to work out the remaining issues between the parties.
The mediator's assistance can help the parties reach an agreement that resolves any remaining issues that arise out of the marital relationship.
In South Carolina, it is unethical for a divorce lawyer to represent both parties to a divorce. There would be a conflict of interest if they represented you and your spouse. While in other states it may be possible to hire the same lawyer it is usually not a good idea.
You’ll include your attorney’s information when you file your divorce petition. Your spouse will have to seek legal advice from a different lawyer. Even when parties agree to all terms of a divorce, the potential for a conflict to arise is still present. Speak with a South Carolina divorce attorney if you have legal questions.
In most divorce cases, the parties agree that one parent will have primary custody of the children. The custodial parent has a right to child support. Even if the custodial parent earns more than the other parent, they can still demand support.
The courts determine child support using the state child support guidelines. The guidelines consider several factors, including:
If there are exceptional circumstances, the court may deviate from the guidelines. The judge’s primary concern is the best interests of the children.
The order for child support is like any other court order. If your spouse doesn’t honor their support obligations, you can ask the judge to enforce the child support order. If the other spouse willfully disobeys an order of the court, they could be held in contempt.
Yes, a joint custody arrangement is possible. Legal custody refers to the decision-making power of the parents when it concerns major issues such as education, health, and religion. Joint legal custody means that the parties will share the decision-making power. A parent with sole legal custody has the power to make these decisions without consulting the other parent.
In some divorces, one parent has primary physical custody and the other parent has visitation. It's rare for the courts to deny a non-custodial parent visitation with their kids. Some parents like to share physical custody of their children. In cases where the children will spend near equal amounts of time with each parent, joint physical custody allows them to do so.
The family court pays careful attention to the effects any proposed custody arrangement will have on the child. The best interest of the child is always the top concern of the family court.
Family law is complex and divorce is a serious undertaking. If you find yourself reaching the breaking point with your spouse, consider speaking to a qualified South Carolina family law attorney about your situation.
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