Divorce in South Carolina | How to Get a Divorce & Process (Guide) 2023

Divorce is a hard enough process without having to worry about all the paperwork and legal obligations. However, the procedure doesn’t always have to be as challenging as anticipated, and assistance is available. What you need to know about divorce in South Carolina—and how to start—is provided here.

Residency Requirements for Divorce In South Carolina

One of the following residency requirements must be met before you can apply for a Divorce In South Carolina :

• You must have been in South Carolina for at least three months right before filing for divorce if you and your spouse are both residents of the state at the time the case is initiated.
• The other spouse must have spent at least a year residing in South Carolina before filing if one spouse is not a resident of the state.

Even though you can file for divorce in South Carolina even if you and your spouse have only been residents for three months, you should be aware that your divorce decree may not address any issues pertaining to child custody unless the child has been a resident of South Carolina for at least six months (or since birth if the child is younger than that) prior to the filing for divorce. There are a few instances where the six-month rule does not apply, but proving them is frequently challenging. In order to determine if you meet this condition, you should see a lawyer.

The Simple Divorce Process

The forms required for a straightforward divorce are available on the website of the South Carolina Judicial Department. For the partner who will initiate the procedure (the “petitioner”) and the other partner, there are different packets of paperwork (the “defendant”). On the website South Carolina LawHelp.org, you can also get instructional films and guides regarding divorce. The South Carolina Judicial Department website’s self-help resources page is where you should go if you have inquiries about other family law-related matters.

If you choose to file for divorce online, the online service will normally send you all of the completed forms (based on your responses to a questionnaire), along with information on how to proceed with the remaining steps. In exchange for an additional charge, certain agencies will additionally file divorce documents with the Court.

Requirements for a Simple Divorce in South Carolina

The following forms and procedures must be followed in order to file a simple divorce in South Carolina:

Residency

If both you and your spouse now reside in the state and you filed for divorce, you must have been a resident of the state for at least three months prior to filing. The other spouse must have spent the year prior to the filing date residing in South Carolina if one spouse resides in another state.

Year-long separation

You must be eligible for the one and only grounds (or justifications) for divorce in South Carolina that aren’t based on allegations of adultery. You must have lived “separate and apart” from your spouse for at least a year straight in order to qualify under that no-fault ground. Separate bedrooms inside the same residence do not satisfy the separation criteria.

Property agreement

Either you and your spouse have worked out a plan to share your assets and liabilities, or you don’t have any joint possessions or debts.

No children or agreement

You don’t share a minor child with your husband and don’t plan to, or you and your spouse agree on child custody, visitation, and support arrangements (which must adhere to the minimal standards set forth in South Carolina’s child support rules).

Divorce mediation may be able to assist you in finding resolutions and reaching an understanding if you and your spouse are having trouble coming to an understanding on any matter. Otherwise, the South Carolina Judicial Branch advises that you speak with a lawyer if you don’t have a settlement agreement or don’t meet any of the other criteria for a simple divorce.

Grounds For Divorce In South Carolina

In your divorce petition, you must state a legal justification (or “basis”) for ending your marriage. South Carolina law permits both “fault” and “no-fault” divorce grounds, like many other states. However, unlike the majority of other states, South Carolina prohibits divorcing couples from filing for a no-fault divorce by just asserting that they are no longer compatible or that their marriage is irreparably destroyed. Instead, a year of “separate and apart” living without any sexual relations is required before a couple can request a no-fault divorce. For the purposes of this criteria, living in different rooms inside the same house does not count.

Fault Grounds – 90 Days 

90 days after filing for divorce, if you’re seeking a divorce on the basis of fault, you can ask for a final hearing (a trial). Adultery, regular drug or alcohol use, or physical abuse are the fault-based grounds for divorce in South Carolina.

No-Fault – 365 Days

The only grounds for “no-fault” divorce in South Carolina are a year of unbroken separation. To put it another way, you must have been living separately and apart from your spouse for a full year before you may petition for divorce.

What are the Fault Grounds for Divorce in South Carolina?

The following reasons are predicated on one or more of the parties’ faults. If one spouse is found to be at blame, the Court’s decision about who will pay for the other spouse’s legal expenses, as well as how much alimony should be paid and how the parties’ assets should be divided, may all be affected.

Proving Adultery in South Carolina

You don’t have to show that adultery actually took place in order to prove it. You can instead establish adultery by demonstrating “inclination and opportunity.” When it is possible to prove that a spouse had a romantic interest outside of the marriage, the inclination is proven. 

An example of “inclination” would be if the spouse used online dating services or sent amorous texts and emails to another individual. When you can show that the spouse had the possibility to act on their tendency, the opportunity has been established. A chance might arise, for instance, if a husband spends the night in a hotel room with a lady other than his wife. If one party’s adultery is established, South Carolina law prohibits that party from getting alimony.

Proving Habitual Drunkenness or Narcotics Abuse in South Carolina

This ground requires you to demonstrate that your spouse’s frequent abuse of alcohol or drugs—not just sometimes or rarely—caused the breakup of your marriage and that the abuse continued at the time of your divorce application or shortly before.

 There are numerous ways to demonstrate that the abuse was the main factor in the marriage’s demise. For instance, your spouse might be abusing alcohol or drugs and losing their job, or they might be using family funds to buy drugs or alcohol.

Physical Cruelty in South Carolina

To obtain a divorce on the ground of physical cruelty, one must be able to show their spouse’s conduct created a substantial risk of death or serious bodily harm. The South Carolina Court of Appeals previously held that a wife was entitled to a divorce on the ground of physical cruelty based on a single assault by her husband when he shoved her into a wall, verbally abused her, and then broke her telephone when she tried to call for help, which left the wife fearful for her safety. The Court also noted that the wife had testified to other threatening events that ended in the assault, all of which indicated that the husband had the intent to seriously harm his wife.

In South Carolina, the spouse who is alleging physical abuse must establish their claim by a “preponderance of the evidence,” or evidence that is strong enough to persuade the Court that their allegations are true. The final decision will be made by the family court judge, but your divorce attorney can evaluate the facts of your case and the available evidence to help you determine whether you have enough to support your claims.

Physical abuse must be “real personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation dangerous,” according to South Carolina law, in order to qualify as a reason for divorce. Physical cruelty can be demonstrated via just one assault. 

Also, if the act was (1) life-threatening, (2) suggestive of an intent to do serious bodily harm, or (3) to such a degree that there appears to be a risk of significant bodily harm in the future, actual physical contact or bodily injury is not necessary to obtain a divorce for physical cruelty.

Whether the victim instigated the abuse will be taken into account by the family court, but even if the victim was responsible for the provocation, the violence would still be evaluated for proportionality. 

For instance, the Court rejected a divorce application in a South Carolina case on the grounds of physical abuse. The Court determined that the “argument leading to the partners’ estrangement was the lone episode of claimed physical cruelty” and that the accusing spouse “may have been the aggressor in another event.”

Physical evidence of cruelty can take many different forms. Naturally, the abused spouse may give testimony regarding the other spouse’s behavior. Possible witnesses include others (s). Even if they weren’t present when the alleged crime took place, witnesses might nevertheless be able to confirm that the alleged victim was upset or panicked right away or that they spotted new wounds. These witnesses are utilized to support the victim’s evidence. Photographs of injuries may occasionally be used as evidence.

Although we’ve seen these calls actually refute the charges, it’s possible that the 911 recording of the police call is inserted. For instance, if a partner calls 911 and claims to have just been attacked moments ago but is otherwise composed, it may damage that person’s credibility.

Evidence can take many different forms, so if you’re trying to establish physical cruelty, use your understanding of the relevant incident(s) to help your attorney uncover relevant evidence for your case. The accused abuser may be found guilty of the crime or enter a guilty plea if they are charged with assault or criminal domestic violence (CDV). In either case, that person won’t be able to change their mind and argue that the abuse never happened in family court.

Physical abuse can have a significant impact on a divorce case, in addition to serving as grounds for divorce. If custody is a factor, the abuser is unlikely to be granted custody, and their visitation rights may be severely curtailed or completely lost. Additionally, the Court may take physical abuse into account when deciding whether to provide alimony or how to divide the marital estate.

Abandonment/Desertion for a Period of One Year

Desertion was once the most popular reason for divorce, but these days we don’t see this reason brought up in family court very frequently. Less than 0.5 percent of divorces are really obtained on the basis of desertion; the majority of divorces are instead granted after a year of unbroken separation.

Is Emotional Abuse a Ground for Divorce in South Carolina?

A simple no is a response. As divorce attorneys in Charleston, South Carolina, we are aware of the psychological and physical effects that a spouse’s emotional abuse may have on you. In reality, a lot of our customers come to us looking for a divorce because they feel emotionally abused by their spouse or by the children of the couple. Unfortunately, South Carolina does not recognize emotional abuse as a basis for divorce, regardless of how emotionally abusive your husband may be, including yelling, name-calling, shaming, and other behaviors.

Preparing Your Divorce Forms

Divorce in South Carolina is typically a complicated legal process involving many forms. The South Carolina Judicial Branch’s website allows you to get the necessary divorce forms and instructions. 

The “plaintiff” (the partner who will initiate the divorce process) and the “defendant” each have their own packets of paperwork (the other spouse). Alternatively, you might utilize a self-help divorce form generator like the one offered by South Carolina Legal Services, or you could hire an online divorce agency to provide and fill out the paperwork for you.

The documents you must fill out if you are the plaintiff include:

• the Complaint for Divorce
• a Summons for Divorce
• a Financial Declaration (which must be signed in front of a notary)
• the Family Court Cover Sheet, and
• a Certificate of Exemption.

Make sure you have three copies of each form after you’ve completed and signed them all. One will be retained by the Court, one will be kept by you for your records, and your spouse will require a copy.

Filing Your Divorce Forms

The divorce papers must then be filed with the Family Court Division court clerk. Here’s how to determine which county you should file in:

• You must file for divorce in the county where your husband resides if you don’t reside in South Carolina yet desire to do so.
• You should file in your county of residence if your spouse is out of state (or cannot be located).
• If both of you reside in South Carolina, you may file in the county where either of you last resided as a couple or where your spouse resides.

The court clerk will levy a filing fee (currently $150) for the documents. You may submit a Motion and Affidavit to Proceed in Forma Pauperis if you are financially unable to pay. If the Court grants your motion, you won’t be required to pay filing fees or sheriff’s fees to serve the divorce papers (more on that below).

Serving the Divorce Forms

You must “serve” your spouse with a copy of the complaint and other forms after you have filed the necessary paperwork with the Court. South Carolina permits a number of methods for serving divorce papers:

• The simplest method is to ask your spouse to consent to receive the paperwork from you personally. You must submit an Acceptance of Service document to the Court, which your spouse must fill out and sign.
• You can arrange for a sheriff’s deputy, process server, or any other adult (unrelated to the divorce) to personally deliver the paperwork to your spouse, or you can leave them at your spouse’s house with a neighbor you can rely on to pass them over to your spouse.
• If the defendant signs a receipt acknowledging receipt of the package, you (or a process server) may transmit the divorce papers via registered or certified mail, as well as through an authorized commercial delivery service.
• In the event that you are unable to locate or serve your spouse in South Carolina, you may ask the Court to permit service by a different means. Typically, this entails printing a divorce notice in a local newspaper and mailing the divorce document to the defendant’s last known address. If you require these alternatives, inquire with the court clerk.

Next Steps in a South Carolina Divorce

Your spouse must file an answer to the complaint within 30 days of being served with divorce papers in order for the divorce procedure to move forward.

When the defendant files an answer

By ticking the proper boxes on the answer form, the defendant in an uncontested divorce must agree to (or “admit”) every allegation in the complaint. You must fill out a Request for Hearing and submit it to the court clerk after obtaining that response.

When the defendant doesn’t file an answer

Your partner can only decide not to submit an answer. If so, you can file a full Affidavit of Default for Divorce after the 30-day window has elapsed, along with a Request for Hearing and evidence that your spouse was duly served with the divorce papers (unless you’ve previously filed a proof of service).

You must send a copy of the hearing notice to your spouse by certified mail with a return receipt requested as soon as you learn the date of the hearing.

Property Division

Property and debts are divided between you and your spouse during a divorce. In general, each party will keep their separate property, which includes:

• acquired by gifting or inheritance from a person other than the spouse,
• accumulated before the marriage,
• obtained following the issuance of a temporary order, the execution of a written property settlement agreement, or the issuance of a long-term order of separate maintenance and support,
• in return for the assets listed in items (1) through (3) above,
• precluded by the parties’ written agreement,
• Representing a rise in the value of the nonmarital property, unless the gain was caused directly or indirectly by the other party’s activities during the marriage.

All other assets belong to the couple. If the parties cannot come to an agreement, the Court will split the property after taking into account the following factors:

• The length of the marriage as well as the ages of the parties when they got married and when they got divorced
• If any party’s marital wrongdoing or fault had an impact on the couple’s financial situation or caused the marriage to dissolve,
• each party’s contribution to the acquisition, maintenance, depreciation, or appreciation of the marital estate, including any contributions made as a homemaker,
• The income, earning potential, and the possibility of future capital asset acquisition for each party,
• The mental and emotional well-being of each party,
• The training or education each party needs to obtain their potential revenue,
• the parties’ separate nonmarital assets,
• Whether each party’s vested retirement benefits are present or not,
• Whether alimony or separate maintenance has been granted,
• The merits of giving the party with custody of any children the family home or the right to reside there for a period of time that is appropriate,
• the tax repercussions for each party,
• financial support responsibilities from either party’s former marriage,
• any liens placed on the individual property of either party or the marital property, as well as any additional obligations incurred during the marriage,
• Any obligations and agreements related to child custody.
• Any additional relevant elements that the Court finds to be significant.

Prepare for Your Hearing

Fill out a Final Order of Divorce and a Report of Divorce or Annulment before your hearing. Additionally, you must make arrangements for at least one witness who can attest that you and your husband lived apart from one another for a full year. The witness must attend the hearing and provide sworn testimony regarding that. Bring your witness and the aforementioned papers to Court on the day of your hearing (es).

Attend the Hearing and Finalize Your Divorce

The Court will inquire about your paperwork, marriage, and separation at the hearing. To get ready, you might consult a sample script on the South Carolina Judicial Branch website. The judge will then stamp the Final Order of Divorce In South Carolina after granting your divorce. Before the judge signs and files the order with the Court, your divorce is not legally finalized.

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