Divorce South Carolina
Divorce in SC – Types of Divorce
South Carolina courts grant two types of divorces.
- At fault
- No fault
At-Fault Divorce Reasons in South Carolina
Divorce refers to a specific type of lawsuit. Marriages are legal contracts. Divorces are a legal way to end a marriage. At-Fault divorces require proof that the other part is guilty of one of the following:
(2) Desertion for a period of one year;
(3) Physical cruelty;
(4) Habitual drunkenness including the habitual use of any narcotic drug.
No-Fault Divorce Requirements in South Carolina
The couple must live separate and apart without cohabitation for a period of one year prior to filing for divorce.
South Carolina Residency for Divorce
Your status as a resident of South Carolina must be established before you may file for divorce in the state. In order to establish residency one of the following criteria must be met:
- When only one person is a resident of South Carolina – 1 year
- When both parties are residents of South Carolina – 3 months
Note: If you are a South Carolina resident, a divorce obtained in another jurisdiction is void.
Jurisdiction for South Carolina Divorces
In a divorce action, the individual who files for divorce is the plaintiff and the other spouse is the defendant. South Carolina requires that the divorce is filed:
- In the county where the defendant resides at the time the divorce is filed unless:
- The defendant is a nonresident or, after a diligent search, the defendant cannot be found. If the defendant is a nonresident or cannot be found, the divorce should be filed in the county where the plaintiff is a resident.
- Alternatively, the divorce may be filed in the county where the couple last resided together as husband and wife unless the plaintiff is a nonresident of South Carolina. If the plaintiff is a nonresident of South Carolina, the divorce must be filed in the county where the defendant resides.
It should be noted that a plaintiff who has established him or herself as a resident of another state may be able to file in the state where they are currently a resident. An attorney should be consulted prior to filing for the divorce in this situation because different state laws will lead to different outcomes in property division, alimony, and child support.
Serving the Divorce Papers
If your spouse resides in South Carolina, your attorney will arrange to have them served with the divorce papers. If your spouse resides outside South Carolina and you know where he or she is, they can be served divorce papers where they currently reside.
A Missing Spouse
If you do not know where your spouse is and he or she cannot be located after a diligent search, you can move ahead with the divorce if you satisfy the 1-year requirement. The court can rule that service can be made by the publication of the summons.
Before divorcing someone who is missing, consult with an attorney to determine if having the person declared legally deceased might be a better way to proceed. SC § 62-1-507(5) allows the court to rule that someone is legally dead when the person has been missing continuously for five years without an adequate explanation and a diligent search has failed to uncover evidence of their continued life.
In a divorce, you are entitled to roughly half the marital assets. A missing person cannot be forced to pay child support or alimony. Minor children of the deceased may be entitled to Social Security Survivors benefits. The way your spouse’s assets would be distributed following a declaration of death will depend on whether your spouse had a Will or if the estate would be probated as if he or she died intestate (without a Will).
Divorces Take Time in South Carolina
If you seek a no-fault divorce in South Carolina, you are required to live apart from your spouse for a full year before you can file for divorce.
If you seek a divorce for desertion in South Carolina, there is a 1-year waiting period before a hearing on the divorce will be scheduled.
At-fault divorces can be accomplished in less time—90 days. This, of course, depends on whether you have proof of the claim for which an at-fault divorce is made. The claim must be proved in order to be granted an at-fault divorce. If you do not have proof it may be less expensive to seek a no-fault divorce. You should discuss your options with your attorney.
Circumventing the Delay
Once the decision to divorce is made, the one year delay can be agonizing. There are two ways individuals attempt to circumvent the waiting period and both are ill-advised.
Obtaining a nonresident divorce
South Carolina § 20-3-420 specifically states that a nonresident divorce shall be void if parties were domiciled in South Carolina, “A divorce from the bonds of matrimony obtained in another jurisdiction shall be of no force or effect in this State if both parties to the marriage were domiciled in this State at the time the proceeding for the divorce was commenced.” Quickie divorces in other states or countries will result in the continued marriage of South Carolina residents.
This provision can be problematic for individuals who routinely maintain more than one residential home. Prima facie evidence means that something is accepted at face value (believed to be true) based on the first impression. Unlike many areas of law where Americans are innocent until proven guilty, prima facie evidence is considered true until you prove it is not true.
South Carolina § 20-3-430 provides that the following constitute prima facie evidence of being a resident of South Carolina:
- There is proof that the person who obtained a divorce from the bonds of matrimony in another jurisdiction was domiciled in South Carolina within the twelve months prior to the commencement of the divorce in another jurisdiction and resumed his or her residence in South Carolina within eighteen months after the date of departure.
- There is proof that the person maintained a place of residence within South Carolina at all times after departing from the state until returning to the state.
This does not mean you cannot obtain a divorce in another jurisdiction when the above conditions may be accurate. It means you will bear the burden of proof that you were not a South Carolina resident when a divorce is obtained elsewhere is your burden.
Falsely Claiming an At-Fault Reason for Divorce
This is fraud. This is illegal. It should never be done.
All states have a vested interest in the continuation of marriages that can be reconciled. Divorces increase poverty within the state and thus the demand for social services. Divorces can also have detrimental effects on the children. Recognizing this, South Carolina § 20-3-90 provides for divorce cases to be referred to a master or special referee who shall attempt to summon the party or parties within the jurisdiction of the court for the purpose of making an earnest effort to reconcile the couple.
Before a judgment of divorce will be made, the master or special referee must certify in a report to the court that reconciliation was attempted without success. If the case is not referred, the trial judge shall state in the decree that the judge attempted to reconcile the parties and was not able to do so.
Reconciliation Involving a Member of the Armed Forces Serving Outside the USA
A member of the armed forces serving outside the continental United States can satisfy the reconciliation provision by signing an affidavit that asserts that as far as he or she is concerned, reconciliation is impossible. The affidavit must be signed in front of an officer of the armed forces who is authorized to administer an oath.
Minors who seek a divorce
South Carolina marriage laws allow minors to marry under several sets of circumstances. If an individual is married in South Carolina, regardless of their calendar age, they are considered a legal adult when seeking, or defending against, a divorce action and in any property settlements agreed to, or mandated by the agreement related to the divorce. No provision to have agreements set aside upon the attainment of the age of majority exists as it does for minors who are not married or emancipated.
Divorces are complex situations that affect every area of your life now and in the future. For information about the following subjects, click on the link. Because of the complexity of divorce and the way unique circumstances affect the outcome, consulting an attorney who specializes in Family Law before you begin a divorce proceeding is advised. It is important to plan your divorce with the assistance of a Family Law attorney before you proceed with any action.