Divorce Laws | Residency Requirements | Grounds for Divorce | Divorce Attorney | Filing for Divorce | Online Divorce | How Long? | Divorce Costs | Custody | Child Support | Alimony | Division of Asset | Common-Law Marriage | Alternatives
Almost always, divorce is never pleasant and at least indirectly, traumatic. Even amicable divorces have a degree of trauma at times. In the undercurrent of that entire process is the law you will have to deal with.
That is what makes this guide so indispensable. Its purpose is to map out a framework for getting divorced in South Carolina. That includes understanding what to expect and how to prepare for the divorce process and any legal proceedings that come with it.
While the situation at hand is probably unpleasant (regardless of the disposition of either party) understanding how to get a divorce in South Carolina fairly and accurately should not be difficult.
Types of Divorce Laws in South Carolina
While the framework is the same, every state has its specific divorce laws. In South Carolina, there are two types of divorce: contested and uncontested. In addition, every divorce is determined to be “at fault” or “no-fault.”
How one proceeds essentially depends on how amicable the relationship with their spouse falls.
When a couple decides to end their marriage amicably, that’s an uncontested divorce. If you choose this type of divorce, you still have to sort issues such as child custody and support, division of property, and debt. However, unlike a contested divorce, uncontested eliminates the emotional exhaustion and the challenges that result from a divorce.
The process of filing for an uncontested divorce in South Carolina is straightforward and doesn’t require an attorney if you are comfortable navigating through the process without one.
You can agree with your spouse to represent yourselves or use online resources that make the process easy. But if neither of these works, one of you can decide to hire an attorney.
These are the high-level steps to filing an uncontested divorce in South Carolina.
1. File for Divorce Paperwork
Start by completing a petition and other forms and filing them with the court clerk. Ensure you check with the local courts to see which forms you need to file. You can file the documents with your spouse, in which case you will be co-petitioners. Alternatively, you can file the forms as the petitioner while your spouse becomes the respondent.
2. Serve Your Spouse
If you choose to file the petition alone, you need to serve your spouse with the documents.
3. Finalize the Divorce
Once the court receives all your paperwork, it can decide to grant you a divorce immediately or request you two to appear before the court for a hearing.
In an uncontested divorce, both parties agree on all the terms of the divorce. Both agree on the following:
- Splitting of tangible assets
- Splitting of intangible assets
- Assumption of financial responsibilities
- Child custody arrangement and visitation rights
- Actions either party must take or cannot take
One reason for an uncontested divorce is to cut out the need to go to trial. Generally, an uncontested divorce works best when:
- Two parties that are in complete agreement on the divorce and the terms of the divorce
- When one party has no assets to split or both parties are in agreement on their division
- When there are no assets or debt to split or both parties are in agreement on their division
- When both desire a quick issuance of the divorce
- When child custody and support are not in question
- When alimony is not in dispute
The court has the following priorities:
- Granting of the divorce
- The well-being of the children
- Fairness for both parties
The priority list shows what the court will want to emphasize and why it will focus on various aspects of a settlement (assets, debt, and spousal obligations). Additionally, when possible, the court will encourage both parties to seek counseling to save the marriage.
Pros & Cons
If you qualify for an uncontested divorce, using an online divorce service is a great way to save a lot of money. Keep in mind in South Carolina, divorce can cost over $15,000 in fees if you file for divorce with an attorney.
We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.
A contested divorce is when one or both parties disagree with the terms of the divorce. The terms in a divorce can include property division, child support, child custody, spousal support, division of non-property assets, and more.
When one party disagrees with any part of a divorce settlement, they are contesting the divorce.
A contest practically means that the judge will decide how the two parties can separate assets and how they will settle the divorce. That can include but is not limited to the following.
Property allocation refers to which party gets what in terms of real property, possessions, and assets. Most people assume this means real estate property, but it covers almost all possessions the two parties shared while together. That can mean a house, for sure, but also a vehicle, internal household possessions, secondary homes or property, and sometimes money.
Property allocation gets tricky when the issue is possessions in a home. While most parties can agree on internal home possessions, even those can cause a dispute in a contentious split. That is why, if you are thinking about divorce, it is wise to start inventorying anything you might want as part of the agreement.
The property falls into assets in this section. Still, asset allocation is primarily focused on investments because tangible assets like property are easier to understand than intangible assets, like a business investment.
Examples of that include:
- Retirement accounts
- Financial investments
- Interests in a business
- Debt owed to the family
- Other intangible holdings contributing to the overall financial status of the family
As mentioned, a contested divorce also includes figuring out how to handle any debt the couple has accumulated. That can be a tricky proposition as it has an impact on virtually all other financial settlement details.
For example, an individual might have personal debt. The court must designate debt owed by both parties to one party or the other. They can offset payment of debt with an asset in a divorce agreement.
In a contested divorce, the child custody aspect of the agreement often gets very ugly. Children are usually highly loved and highly valued by both parties. The fact that the two parents are divorcing, however, requires an agreement on the following (this list is not comprehensive):
- Living arrangements
- Which parent has final decision-making authority
- What funds are available from either spouse to help support the child
- Restrictions on access to the children either party might have
- Visitation rights
- Restrictions on what either parent can do with the child
- Custody of the child during holidays, vacations, etc.
Agreeing on all of those points can be difficult for both parents, and the court can serve as a mediation between the two.
Well Being of the Child
In addition to reaching an agreement on custody and visitation, another goal of the contested divorce process is to let the court determine the best course of action regarding custody of a child or children.
For example, if a parent travels on business and is only home on weekends, the primary responsibility of the children will likely go to the other parent, provided they are around more. Likewise, if there are mitigating circumstances, such as criminal charges or addiction, the judge will review those facts and determine if the circumstances should affect child custody.
When preparing for this part of the divorce process, it is critical to keep in mind that the judge has a process they must follow, but they are not required to agree with one party or the other. Likewise, the court does not have to provide one parent a minimum amount of time or unsupervised time with a child.
We’ve covered just a very partial list of areas that might fall under scrutiny in a contested divorce. The goal of the contested divorce process is to secure an agreement or ruling on:
- Terms of a divorce agreement
- Splitting and disposition of any assets
- Child custody arrangement that is in the best interest of the child
- Financial responsibilities of either party (alimony and child support)
- Specific actions either party must take to finalize the divorce agreement
- Specific steps either party cannot take in regards to each other or the child(ren)
In a contested divorce, the court is objective and desires an amicable split but will rule based on the law and the circumstances as presented. One element of the goal of a contested divorce process is to ensure both parties get a fair arrangement.
Pros & Cons
Residency Requirements in South Carolina
You must be a resident of South Carolina to receive a divorce decree in South Carolina. One or both of the parties in a divorce must be a resident of South Carolina to file for divorce in South Carolina.
To qualify for residency in South Carolina, the following must apply:
- One of the parties must have lived in South Carolina for one year, or both parties must have resided in South Carolina for at least three months.
- Location data on official documentation (driver’s license, vehicle registration, and other essential documents) must be changed to or provided in South Carolina.
- You must maintain no documentation that establishes residency in another state.
- You must establish intent to become or be a South Carolina resident if you’re not already.
To establish intent, one of the following is needed:
- Full-time employment verification (a letter on company letterhead stating you are employed there; the letter must indicate the hire date, hours per week, and employment status)
- A military record that designates South Carolina as your legal residence
- A valid South Carolina driver’s license or non-driver identification card
- A valid South Carolina vehicle registration card
- Proof of domicile in South Carolina
- Proof of payment of South Carolina income taxes in the past year
- Proof of property ownership in South Carolina
- Professional practice licensing
If you cannot prove residency, you will need to do so before you are allowed to file for a divorce. If your spouse can prove residency, they can file for a divorce in their name.
Failure to prove eligibility for a divorce in South Carolina (failure to show residency) can result in a case dismissal. If this is an issue for you, you must discuss options with your attorney to get one of the necessary proofs to prove residency.
Out of State Parties
If one party in a divorce leaves the state, the other party can file for a divorce if they are a resident. If the other party has never lived in South Carolina, it can get tricky. South Carolina may have no jurisdiction over the person regarding dividing assets, child support, alimony, etc.
If you are the party that lives outside of South Carolina, but your spouse is a resident, you can file for a divorce in South Carolina, and all jurisdictional laws, rules, and rights apply. That means you can divide assets, determine child support and alimony.
If either you or the other party resides outside of South Carolina, it is a good idea to seek counsel regarding filing for divorce. If neither party has residency or proof of intent for the state of South Carolina, you will need to file for divorce in the state in which you do.
Divorcing a Missing Spouse
When one spouse wants to divorce, and the other is missing, a Divorce by Publication becomes the legal conduit to pursue the action. The petitioner must conduct a “diligent search” to find the other spouse, but once they finish, they can fill out an Affidavit of Diligent Search and then pursue a Service by Publication.
Grounds for Divorce in South Carolina
Getting a divorce in South Carolina is not complicated except in the case of some contested divorces. If the divorce is amicable and uncontested, the process is pretty simple. It begins with determining the reason for the divorce.
Reasoning for Divorce
When determining if a divorce is uncontested or contested, both parties must also determine the reasons for the divorce. There are two types of umbrella reasons that cover why the marriage is dissolving.
In an at-fault divorce, one party alleges that the other party, or both, engaged in behavior that warrants the legal termination of a marriage. Those reasons include, but are not limited to:
- Physical, mental, or emotional abuse (sometimes referred to as “cruelty”)
- Substance abuse
In an at-fault divorce, other legal actions and documents might apply:
- Restraining orders
- Order for Protection
The person alleging the abuse or at-fault cause must prove to a judge that one or both of these documents are warranted. A restraining order prevents a person from going within a certain distance from the person that has committed abuse or harassment. In an Order for Protection, the judge will limit the actions of the party accused of abuse to ensure that the other party is protected.
Actions a judge might mandate:
- Refraining from drinking
- Pursuing therapy
- Checking in with the police
- Prohibiting communicating directly with the other spouse
- Prohibiting any contact
- Mandate a third party be present during child pickups
Violations can result in the arrest and incarceration of the person ordered to adhere to the Order for Protection.
A no-fault divorce is applied when neither party meets the criteria listed for at-fault divorces. To get a no-fault divorce, the two parties must live separately and apart for one year.
A no-fault divorce is not saying there is no reason for the divorce, but rather that the reason(s) do not meet the legal threshold for an at-fault divorce filing and you would still like to end your marriage.
Using a South Carolina Divorce Attorney
If you are contemplating a divorce or are in the midst of one, hiring an attorney is your best interest. Here is some advice on hiring one.
When to Use an Attorney
You may feel tempted to avoid hiring an attorney, especially if the divorce is relatively amicable. The principal reason to avoid hiring an attorney is to save money.
Going it alone in an uncontested divorce is allowed but not recommended. The reasons why are as follows:
- Unless you are an attorney, you do not know the law as well as someone who went to school for law and is actively practicing law in South Carolina
- If you are an attorney, you know how important it is that you hire an attorney
- You do not know whom your spouse is getting advice from
- You do not know what direction they are getting on their side
- “Amicable” can change in a heartbeat, especially since emotions are involved
- You do not want to find out as you enter the courtroom that your spouse has “lawyered up”
- Your spouse will possibly be strongly encouraged to hire an attorney, regardless of how amicable things are
- The expenditure is worth it because you know your best interests are protected
The cold reality is that divorce can get ugly very quickly, and if you are not prepared for that to happen, you are at an immense disadvantage.
Pros and Cons of Using an Attorney
The advantage is simple: You have someone that knows the law, the court, the process, and how to navigate through the process to get a result that is in your best interest. Other advantages are:
- You do not have to worry about managing the proceedings
- You do not have to worry about managing the paperwork
- You do not have to worry about managing the deadlines
- You do not have to worry about representing yourself
- Your best interests are covered
The disadvantages are just as simple:
- Lawyers are not inexpensive, even if they are worth it
- A lawyer will be looking out for your best interest, which can increase conflict
- If they have not already, the other side may also hire an attorney
- Having attorneys present can cause delays
Even considering those disadvantages, hiring a lawyer for your divorce is highly recommended. Going it alone might work, but you may face more challenges.
What Makes a Good Divorce Attorney
Competent attorneys, regardless of what they specialize in, all have a few basic characteristics.
Reasonable attorneys listen and ask questions. They want to know what they are getting into and use that information to formulate the best strategy to help you achieve your goals.
The need to be able to communicate is a given specialization of law. With a divorce attorney, being able to communicate effectively is vital. They will need to elicit information from you and use that information to form a legal strategy. They will also need to speak with the judge, other court personnel, and your spouse’s attorney and do so effectively.
Good communication between the two parties is also essential to being able to represent you adequately. Your attorney needs to be a skilled negotiator and to be able to build a rapport with the other side, to facilitate a settlement if one is possible. Finally, your attorney will need to be able to communicate with the court effectively.
They Are Skilled and Experienced
You want your attorney to know the law backward and forwards and to be able to apply it appropriately. The type of knowledge that is vital to a successful divorce case is gained from experience.
They Are Composed
Divorces are emotional. That emotion can sometimes spill over and get heated. Having an attorney who can remain calm and help deescalate conflict is critical to effectively negotiating a settlement or function before a judge.
Their Team is Competent
A great attorney is only as good as their staff. An attorney pulled in 80 different directions because they are understaffed on their team is not competent, and will be perpetually one step away from disaster. When you are at your initial consult, make sure you ask your prospective attorney to detail for you the team behind them and their qualifications.
How to Find a Good Divorce Attorney
There are multiple ways to find a divorce attorney. You can find them on billboards, late-night television, sides of buses, and even advertising in local papers and on the internet. Finding a good divorce lawyer, however, can be a little bit more challenging.
There are several places you can find a competent attorney that will represent you well.
Just about everyone has a friend who went through a divorce. Most have several. Taking recommendations from them can lead you to the perfect attorney if you do your homework.
Chambers of Commerce, rotary groups, and private clubs like The American Legion have many members, many of whom are attorneys or have needed divorce attorneys. Check in with the member services of each and ask them for recommendations. They usually can guide you in the right direction or help you avoid a lawyer that is not up to the job.
The internet has multiple sites that evaluate lawyers and provide client feedback. Another source is attorney organizations. Often, those will have recommended lawyers for specialty fields.
Your family members might have experienced a divorce or know friends who have. Ask them if they would recommend anyone.
You can contact the South Carolina Bar Lawyer Referral Service at 1-800-868-2284. Ask for a referral of an attorney that specializes in family law or divorce law in your area. Any member they recommend will have:
- Been in practice exceeding three years
- Are in good standing and able to practice in South Carolina
- Have malpractice insurance
- Have agreed to provide a 30-minute consultation for no more than $5
Interview Questions for Divorce Attorneys
There are some basic questions every prospective client should ask of the attorneys they are interviewing:
- What is your experience, both as an attorney and practicing family law?
- What is your courtroom experience?
- Are you comfortable negotiating?
- Do you favor or oppose mediation?
- What team will be handling your case, and what is the team member’s experience working with divorces?
- How much is the retainer, what other fees apply, and how much do you estimate this will cost?
- If things do not work out and a change is needed, is the retainer fee refundable?
- How are your hourly rates applied?
- What is your billing process?
- What is your estimate for how long this case will take?
- What do you think the total cost will end up being?
- When will you provide updates on the case?
- Do you provide copies of case information as you get the information?
- Do you know the judge and court personnel as well as local court procedures?
- Have you worked with the judge and court personnel, and what is your assessment of both? How do they perceive you?
- Given the case details, are you comfortable providing representation, formulating a strategy, and executing tactics that will favor a favorable outcome?
Make sure you ask as many questions as you need to determine the right attorney for your case. You should, at the very least, get along with your attorney and feel safe with them.
Is the Initial Consultation Free?
Most attorneys will offer a free initial consultation. Some do not. The best bet is to ask up front.
Is the Meeting Confidential?
All meetings with your lawyer will be confidential. The only time confidentiality does not apply between a lawyer and client is when crimes are being committed.
Filing for Divorced in South Carolina
While the emotional quotient involved is unique to most legal processes, the basics of filing for a divorce, negotiating a settlement, and going to court are the same as any other legal case. You still have to be prepared, file the correct forms, hit all deadlines, prepare for negotiations, and prepare for court.
If you do not follow the process, you risk delaying your divorce or even losing in terms of what a judge decides. Getting a divorce in South Carolina is not the time to mess around or go it alone.
Before you discuss your case with an attorney, get organized. If you are not, you risk overlooking something, forgetting to file a form, or missing a deadline. Being prepared is the only way you can get through this without causing yourself stress and anxiety.
At least, you should complete the following before you fill out any court forms.
- Open a new checking account in your name alone
- Get a credit card in your name alone
- Check your credit score
- Make copies of any financial documents you can
- Make a list of all known assets
- Make a list of all known debt
If you are not actively involved in managing your finances, you may not know some of this information. Do not worry. Your attorney will request that your spouse provide all financial information as part of the discovery process.
If you are involved in the financial management of your marriage, and you can get the information above quickly, do so. This is information you must provide in any circumstance.
Gather Your Information
Your spouse will likely request that you provide any financial information you have at your disposal. You want to ensure that you get all the requested information before your attorney asks to give them a chance to review everything.
The information you should assemble and organize about yourself includes:
- Tax data and forms (including any W-2s, K-1s, 1099s) for the last five years
- Pay stubs for the previous six months
- Bank statements for all accounts in your name or you and your spouse’s name
- Credit card statements in your name or you and your spouse’s name
- Investment statements
- Retirement fund statements (including any pension plan)
- Mortgage statements
- Real estate appraisals and any deeds pertinent to real estate you or you and your spouse own or owe money on
- Loan financial data, including payment history (mortgage, car, education, and more)
- Pertinent investment and real estate tax data
- Social Security benefit statement
- Documentation for any medical conditions
- Vehicle registration
Each of these bits of data helps formulate your overall divorce legal strategy. Each will also give your attorney an idea of the obstacles you will face in getting an equitable settlement or judgment.
If there is information that is embarrassing or could cause you problems, you need to be upfront about all of it. Chances are your attorney has seen cases like yours dozens of times. They are not there to judge but to help you win your divorce case.
Additionally, you should provide your attorney with any information you know regarding the finances of your spouse. Information you provide can help your attorney determine if your spouse has been fully compliant with any records requests.
Let Your Lawyer Fill Out the Paperwork
If you have hired an attorney, their staff will handle all the paperwork and contact you when they need specific information. They will also make sure that your paperwork is filled out correctly and filed in compliance with court rules.
If You Do Not Have a Lawyer
If you have not hired an attorney and are filing your paperwork yourself, use the following as a reference.
First, the following website is your online resource for all the forms pertaining to divorce: South Carolina Judicial Branch. Refer to this site often and use it as a guide.
Pro Tip: The information below is perfect for you to get an overview of the divorce filing process and also use as a guide if you will be filing for divorce on your own. However, if you are using an attorney, their team will typically be taking care of these steps as part of their proper representation of you as a client.
Preparing Your Divorce Forms
Use the South Carolina Judicial Branch website to gett the instruction and forms you need to file with the court. Follow the instructions carefully. If you do not have the information requested, contact court personnel and ask them how to proceed.
You will need to fill out (at least) these forms:
- Family Court Cover Sheet
- Certificate of Exemption
- Summons for Divorce
- Complaint for Divorce
- Financial Declaration Form (this form must be notarized)
Once you have completed all the forms necessary, make five copies. Distribute them as follows:
- One to the court
- One to your lawyer
- One to your spouse (see how to serve them below)
- One for your records
- One for a backup file
Many forms will require a notary public to certify your signature. Do not sign any document that requires this until you are in front of a notary public. If you want to avoid repeated trips to the notary public, take all documents requiring certification to them at once.
For every form you fill out, make sure you have another pair of eyes review it. At least give yourself a solid “overnight” after you finish with a form and check it the next day.
When you are sure your forms are accurate and complete, follow the guidance below.
If you want assistance with preparing your divorce forms appropriately and instructions on how to file them correctly, using an online divorce service is a great idea to save a lot of money and hassle.
We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.
Filing Your Divorce Forms
Once your forms are filled out and checked over, it is time to file them with the court. You will file with the Clerk of Courts. There will be an initial filing fee of $150, due at the time of filing. There may also be additional administrative fees.
The plaintiff's instructions outline who should file on their own and who should not. You should heed the advice. If you do not meet the criteria laid out in the instructions to the letter, hire an attorney if at all possible.
If you cannot afford an attorney, you may qualify for free legal services or legal help at reduced costs. Contact the following service to start the process of certifying that you are financially eligible to receive support.
South Carolina Legal Services (SCLS) Legal Aid Telephone Intake Service – 1-888-346-5592
The criteria for receiving help from the SLCS is that your income does not exceed 125% of the Federal Poverty Guidelines. Once you have filed your divorce forms, it is time to serve your spouse.
Serving Your Spouse
You are required by law to provide your spouse with a copy of any forms you filed. The documents must be date-stamped by the Clerk of Courts. You may also use a professional process server, a sheriff’s deputy, or anyone over the age of 18 for this step.
When they serve your spouse, there is paperwork they will need to complete. That paperwork must be returned to the court documenting the date of the service (including the time of service, which can be important when trying to establish timelines.)
The process of serving your spouse by a professional process server, deputy, or anyone over the age of 18 is known as “service by process.”
In some cases, the spouse will not be able to be located. The following section addresses that scenario.
Service by Publication
If you have tried to serve your spouse and they are ducking the service or are no longer in the state, you can serve them by what is called “service by publication.” Doing this utilizes the newspaper medium to give someone notice of your intent to divorce. It works as follows:
- You file a summons and complaint with the Family Court
- Your attorney must make a “diligent effort” to locate the other spouse and serve them
- You must file an Affidavit of Due Diligence that outlines your efforts to find the missing spouse
- The Family Court issues an “Order for Service by Publication”
- You or your attorney arrange to run the complaint in a print or online newspaper (or both)
- The publication must run for three weeks
- Once that timeframe has passed, you file an Affidavit of Service by Publication with the Family Court
- The case is then processed as usual
There are several lines of objection a party can make about service by publication. If you follow the law, you will be fine. Here are a few general tips on using the service by publication mechanism.
General Advice for Serving a Spouse
It is jolting to get served with a divorce complaint. It can be embarrassing if you complete the service anywhere but the home (and sometimes even then).
When possible, have a sheriff’s deputy serve the spouse. The law has a way of cooling tempers and forcing the served to maintain their composure. The sheriff can also inform your spouse as to the legal aspects of any response they initiate. This step is essential if the spouse is abusive in any manner.
Request copies of the service paperwork. These papers are typically provided, but reiterating the request is appropriate. You do not want to be lacking paperwork when your case gets to trial. Documenting the date and time you served a spouse is helpful, particularly if they are trying to delay by denying you followed the law.
Advice for Using Service by Publication
Service by publication must run for “three weeks in a newspaper of general circulation.” This quote means a regular, daily newspaper. It does not mean:
- A weekly newspaper
- An off-beat newspaper that caters to a select audience (music lovers, club-goers, and local businesses)
- A newspaper that skips publication dates (some do not publish on weekends)
- A subscription-only newspaper
- Industry newsletters
Your advertisement must run for three weeks. You should insist that it runs for three weeks consecutively. Many newspapers have other weekend and holiday layouts and advertisement schemes.
It is best to run the service by publication for a week before you start counting the three weeks and a week after. This way, if your spouse contests the 30 days timeframe, you are covered.
After the Service Has Happened
Once your spouse is served, do not respond to any communications they attempt. If necessary, instruct them to communicate through your lawyer.
While there are some circumstances where direct communication is advisable and even needed until the initial jolt wears off, the less you two communicate, the better.
If you decide to communicate directly, only meet your spouse in the presence of a third party in a public setting. Ask a friend or co-worker to accompany you to any meeting.
If you do meet, make it clear you are not negotiating the divorce or any aspects of a settlement. This step is critical if your spouse is manipulative. Do not let them talk you into something that works against your best interest. Tell them that anything they suggest will have to be reviewed by your lawyer.
Keep your cool. This step is crucial if your spouse is abusive. They will try in all likelihood to get a reaction out of you. Do not take the bait. If you get agitated, terminate the meeting and walk with your third party back to your vehicle or a place of safety.
Your spouse will likely send you a request for financial documents, even if they handled all your family finances. Understand that this is common, and make sure you comply to the greatest extent possible. Provide the documents they asked for and only those documents.
Do not withhold any information. Not only will it likely be discovered at some point, withholding information can have legal penalties for you, and it can turn a judge or mediator against you.
If you think the information is damaging, give them what they asked for as long as your attorney says it is permissible.
Finally, make sure that any documentation you provide is complete. If you do not have the requested information, state that. Providing incomplete information is a red flag for the court and your spouse’s attorney.
Online Divorce in South Carolina
If your divorce is “simple,” or “uncontested” and “no-fault,” you can use an online portal to file for divorce in South Carolina. The online process is simplified and easy to use.
How to Qualify for an Online Divorce in South Carolina
The criteria for a simple divorce are as follows.
- You and your spouse agree on all aspects of the divorce settlement (this means no contest over children, property, finances, or debts).
- You and your spouse have been living separately for at least a year.
- You are willing to certify that both facts are actual in writing.
Do You Still Need to Go to Court?
Filing an online divorce does not mean you can get divorced online or even mean that you can avoid at least one trip to the court. Once you have filled out the simple divorce paperwork, you must deliver it in person to the court.
Online Divorce Benefits
The online divorce mechanism streamlines the paperwork, serving process, and mandatory court appearances. One service for online divorce paperwork only requires the petitioner to complete an online questionnaire.
If the details of your agreement are still in the works, you can still file for divorce online. The criteria to be eligible is to have an uncontested divorce. If your differences are logistical and minor, South Carolina courts offer mediation services and couples counseling to help end a marriage amicably.
The benefit of online divorce is that it is:
- Less complicated
- Avoids most court appearances
- Less expensive
For most people, divorce proceedings can be as challenging and stressful as anything encountered in the marriage. The proceedings can also be frustrating, aggravating, and exasperating.
If you agree with your spouse, though, online divorce is an option that removes several middlemen as well as processes. It reduces your divorce to more of a paperwork process than a court-driven process.
Streamlining the Streamlined
Online divorce does not mean you avoid court. In some cases, you may need to appear before a judge. This step happens mainly if your agreement is complex.
One area that can create issues is finances. If the divorce is uncontested, the more you work out those things beforehand, the less likely you will have to appear in court.
For example, if you have implied or shared ownership of vehicles, signing one over (including any loans) before filing for divorce will eliminate that as an issue during asset and debt splits.
Earmarking ownership of assets (or debt) requires that you follow both federal and state law. In some cases, you may end up owing taxes. Working with a financial planner to help make the dividing of assets less messy is a good idea.
How Long Does It Take to Get a Divorce in South Carolina
The clock for your divorce starts once all required paperwork is filed. If the divorce is uncontested, it takes at least 90 days to finalize the divorce. This is state law. A good way of thinking about it is that it is a period to address any loose ends.
Once the 90 period is over, the judge can sign a final Decree of Divorce. Contested divorces usually take much longer. It’s especially longer if you end up going to trial. In that case, you are subject to a couple of variables:
- The court schedule
- You and your spouse’s schedules
- Your attorney’s schedule
- Your spouse’s attorney’s schedule
- The complexity of the issues in your divorce case
- Case preparation time
- Negotiating time
- Disposition of the divorcing parties
Most courts have backlogs. Adding to that is the schedule of the judge and the attorneys. All of them have their caseloads with varying dates they need to be in court. Your attorney and your spouse’s attorney also need to perform work for their cases.
Then, there is your schedule and your spouse’s. Likely, both of you can show up when the case is scheduled, but that does not always work. Life gets in the way, kids get sick, and vacations get planned. What was once a single schedule with two participants is now two different schedules with two people living their own lives.
For cases where there are relatively few assets or no children, a single hearing or two is usually all that is needed. Cases with multiple layers of finances, custody issues, and payment requirements can take numerous hearings, especially if the facts of the marital situation are disputed.
As an example, finances often become an issue. If one party is suspected of hiding assets, it can take multiple hearings and court orders to get the needed information. In rare cases, the criminal code becomes involved, which can delay things even further.
If the totals of the assets are in question, a contested divorce can go on for some time. The court will likely call accountants and finance experts to testify about the investments. If the contested finances are real property-related, attorneys might contact appraisers and even real estate agents.
The other wild card in contested divorce cases can be child custody issues. Both parents love their children and want what is best for them. Sometimes, though, “what is best” depends on the parent you ask.
Because of that, no part of a contested divorce case is more emotional and potentially volatile than deciding on custody-related matters. Sometimes, even the child or children have a conversation with the judge to ascertain their wishes. Often, neither party likes the outcome entirely, which can lead to resentment and resistance.
All of this and more factors into the timeline of a contested divorce. The more complex the case, the more time it will take to work through.
Case Preparation Time
The time it takes to prepare for trial can differ. Simple divorces and even contested divorces that do not have many moving parts are easy to prepare for. Contested divorces that have multiple facets can require months of preparation.
Expert witnesses, eyewitnesses, accountants, financial managers, other professionals, friends, and family may end up testifying, and each has to be prepared for what they will face.
In addition, there is some paperwork. Receiving and processing requested financial documents and other divorce-related documents can fill a storage unit in some cases. If those documents need to be explained, an expert might be called in to provide their interpretation.
With custody issues, the health records of children and the two parties may be relevant. You may need experts in child psychology, health, and management to appear in court.
Most attorneys and judges want a divorce case to be resolved amicably and quickly. To that end, the participants may be encouraged repeatedly to try mediation. Scheduling meeting times during mediation or negotiations take time, and the meetings themselves may not be held for weeks.
Disposition of the Divorcing Parties
The driving force behind the length of the trial is the wishes and attitudes of the two divorcing parties. If both want a quick divorce, the speed can usually be significantly increased, mainly if all the contested issues have been worked out. Agreements can be submitted at any point the divorce case is open.
On the other side, however, a hostile spouse or spouse that does not want to divorce can make the trial length long. There are dozens of ways to delay a divorce trial that is legal and permitted. If the spouse is willing to bend or break the rules, there are far more ways to delay a trial.
Divorce Costs in South Carolina
When it comes to divorce in SC, unfortunately there are fees you will have to pay. Here are a few of them.
The filing fee for a divorce in South Carolina is $150. There are other administrative fees, such as serving a person or getting copies of paperwork. If you cannot afford the basic costs, you may qualify to have the fees waived.
After that, it depends on what the parties involved are willing to spend. A typical divorce case has the following costs:
- Attorney retainer fee
- Hourly attorney charges
- Litigation fees
- Auxiliary case-related charges
- Mediator costs
Attorney fees depend on the attorney in question. Some attorneys are more reasonable than others, although higher-priced attorneys typically have superb case outcome records. A typical divorce retainer fee will cost between 1,000 dollars and up, depending on what is involved in the case.
You should also make sure you understand the ins and outs of the retainer fee. Some law firms require you to replenish a retainer fee after the hourly fee exhausts it. This fee serves as a form of the de-facto escrow account. The best advice is to have several thousand dollars put away to use as the case progresses.
Hourly Attorney Charges
What an attorney charges hourly is also highly diverse. Almost all attorneys charge over $100 an hour, and some will charge several hundred an hour. You should research each attorney you consider to ensure that what they charge comes with the likelihood you will win your case.
This fee is mainly applicable if you hire a more prominent, older law firm. Often, those firms trade on their name, and while that usually works out, sometimes, the skill of the attorney you work with does not live up to the hype.
Make sure you research your attorney’s record, regardless of the firm they work for, and verify they are likely to help you win your case.
These include fees directly related to the case not associated with work your attorney has done on your behalf. They might hire a private investigator, expert witnesses, and associated fees to build a strong case that they did not discuss upfront. They also include any additional court fees.
Some people wonder why these fees are not included in an attorney’s fee. Most are, but sometimes administrative costs of a case require separate outlays of cash. This case is particularly true if you added new information to the case after you retained the attorney.
Make sure to read any agreement you have and that the verbiage on additional expenses is spelled out. If you have any questions or objections to additional fees, discuss them with your attorney before agreeing to pay a retainer.
A mediator usually runs on an hourly basis, but occasionally you can find one that charges case-by-case. While not as expensive as an attorney, a good mediator in demand can cost a significant amount of money. That expense, however, can save in avoided hourly attorney fees if the case goes to trial.
The average cost for a Columbia South Carolina mediator is between $150 and $200 an hour, although a few can be significantly higher.
A fee for a mediator largely depends on their experience, education, and training. If you elect to have a court-ordered mediator, the cost might be based on a sliding scale tied to your annual income.
Online Divorce Service
If your divorce is uncontested, you may qualify to use online divorce services. This qualification can help avoid costly trial and attorney costs. Several online services can help you through the process. You can also use the state of South Carolina’s judicial court website to access the forms you need.
Most charges for an online divorce service will be between $250 and $500. Many have monthly payment options. You also have access to several online resources, which can make the investment well worth it. These include access to support by email and phone and a library of legal help related to divorce.
If you want assistance with preparing your divorce forms appropriately and instructions on how to file them correctly, using an online divorce service is a great idea to save a lot of money and hassle.
We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.
Custody Considerations in South Carolina
No parent has automatic custody rights in South Carolina. In any divorce, state law says you must create a custody arrangement. The law also says the best interest of the child is the focal point. In most cases, custody is joint or shared, and the parent with primary custody must recognize the right of the other parent to see their children via regular visitation.
In some cases, the children can state whom they prefer to stay with. To be able to do that, they must have reached an “appropriate level of maturity.” The child’s preference, however, is not the final say. In many cases, a guardian ad litem is appointed, and that person represents the child’s interests in and out of court, but only as it pertains to the divorce.
If no custody arrangement can be agreed upon, the judge will step in. They will base their decision on several criteria.
- Age and health of each spouse
- Education and income of each spouse
- Work schedules
- Parenting style
- Religious considerations
- The child’s or children’s age and sex
- The child’s preference
- Domestic violence occurrences
- Guardian ad litem input
In most cases, the parent with primary custody will also have the right to make decisions for the child. This custody agreement can include issues such as:
- Medical decisions
- Permitted activities
- Religious affiliations
- Education options
If the other parent objects, their recourse is to work it out with the spouse that has the power of decision-making for the minor child or go back to court. Additionally, if the situation of the adults changes substantially, you can renegotiate the custody arrangement. To change the custody arrangement, however, requires a persuasive argument if the other party objects.
For example, suppose the parent with primary custody is incapacitated or takes a job that requires significantly more time away from home. In that case, the other parent can petition to change the custody arrangement. If one parent or the other is convicted of a crime, you can also initiate a change.
As mentioned previously, most of the divorce-related decisions will pertain to the best interest of the child. This best takes into account all matters, including custody, finances, and situational facets. In fact, with most judges, unless one party or the other can show that what they want to do will benefit the child or what exists is harming the child, the tendency will be to leave things as is.
Further, as a child grows into the mid-teens, the ability of a parent to control their decisions, including where to live, becomes much more complicated. Often, a custody arrangement is ignored, and it is not in the best interest of the affected parent or the child to pursue enforcement.
Child Support Considerations in South Carolina
The child support laws in South Carolina are formulaic and leave very little room for judicial discretion. The criteria covers:
- Gross income of the mother
- Gross income of the father
- Each parent’s gross income as a percentage of the joint gross income of the family
- Pre-existing child support and alimony obligations
- The number of minor children of the parties
- Minor childcare costs that are work-related
- Health insurance costs of each child and the party responsible for payment
- Overnight stays per year for each parent
Several websites have a child support calculator for South Carolina. If you use a child support calculator, make sure it is sanctioned by the state of South Carolina, as that will ensure you have the most up-to-date formula.
If there is a history of nonpayment of child support, the court may order that child support payments be remitted to the court clerk. This remittance will have a collection fee. It is to ensure that payments are made and made promptly.
For most employers, the parent paying child support can elect to have part or all of their child support payments deducted from their weekly wages via an automatic payroll deduction. This deduction ensures that payments are made every week the parent works.
South Carolina considers incidental expenses when a child is with one party or the other to be extraneous to child support payments. This means you cannot reduce the amount because of said incidental expenses. Additionally, the parent with overnight custodial authority is expected to provide for the child’s basic needs over and above any child support payments.
Non Payment of Child Support
South Carolina takes nonpayment of child support very seriously. The potential penalties can be very severe. They include:
- A contempt of court ruling and associated penalties and fines
- Fines, jail, or both for nonpayment
- Garnishment of wages (this includes unemployment and worker’s compensation)
- Termination of state benefits and exclusion of state and federal benefits
If nonpayment occurs or the party obligated falls behind in payments to the court, the court clerk will issue a book-keeping rule to show cause. When that happens, the person in arrears must argue to a judge why they should not be held in contempt of court.
In many cases, the family court will jail a parent for nonpayment of child support until they have cleared up the outstanding obligation.
If the party responsible for child support payment pays directly to the other party and falls behind, the unpaid party can file a rule to show cause like the court clerk.
Child support is viewed as separate from visitation rights. In this situation, the parent that has not paid child support maintains visitation rights for all affected children, and the parent may not restrict access. This law is because the right to receive child support falls to the child, legally, not the custodial parent.
Deliberate Avoidance of Payment
When an obligated party moves away to avoid child support or otherwise attempts to avoid payment, the federal Deadbeat Parents Punishment Act applies. Pursuing enforcement of this law requires a filing in federal court for nonpayment of child support. Penalties for a party found guilty include jail time up to six months for a first offense and payment of back child support.
The exact process applies to someone that remains in the state but actively avoids payment and attempts at collection.
Child support obligations typically do not consider the current financial status of the party obligated to pay. If that party has a financial setback, they are encouraged to do the following:
- Petition the court to be placed on a payment plan that allows them to catch up over time
- Petition to have their child support reduced
In cases where the obligated party petitions for the latter, they must prove that their financial situation is due to a “material change in circumstances.” Reduced income often is not enough to reduce child support. The obligated party must also show they have done all they can to pay and remain current in payments.
Alimony Considerations in South Carolina
Spousal support can be an obligation held by either party in a divorce. They can pay it in installments or one lump sum. The purpose can be to help the other party get back on their feet, or it might be permanent, depending on the other party’s finances.
A judge will consider many different factors in determining alimony amounts. Those include:
- Length of the marriage
- Ages of the parties as well as their physical and emotional health
- The educational background of each party and training needs to achieve income potential
- Employment and earnings history of both parties
- Standard of living during the marriage
- Anticipated earnings
- Anticipated expenses
- Marital misconduct and fault for both parties
- Tax consequences of support totals
There are a few rules that apply as well:
- A spouse that commits adultery is not eligible for alimony.
- Other at-fault behaviors do not prohibit alimony.
- The judge can grant temporary maintenance for the duration of the divorce.
- The judge can change alimony if life circumstances change.
- Alimony ends with the death of either party.
- Alimony ends when the recipient remarries or lives with someone for more than 90 days.
Other Alimony Facts
The under-riding goal of alimony is “fairness” and to get the other party to a financial status where they can support themselves. Alimony can be settled upon before a divorce decree, and separated parties can petition for alimony.
A lump-sum payment cannot be modified or reimbursed. If the alimony agreement is contractually defined as a total, the paying party may still owe if they die. The court would leverage this against the deceased party’s estate.
The two parties can negotiate an alimony settlement, including modifying the amount owed. A settlement is one way that both spouses can “win” in an alimony dispute.
Division of Assets
The principal behind the division of assets in South Carolina divorces is “equitable distribution.” As many have found out, that does not automatically mean “50-50.” It means that the court, barring an agreement between the divorcing parties, will strive to achieve fairness in dividing assets and debt.
Generally, if an item has value, it is an asset even if it is not owned outright. Thus, a home with a mortgage would be considered a mutual asset. A vehicle with a loan on it would be regarded as a joint asset or the asset of the person who signed the loan papers.
On the other hand, debt is the burden of the person or people who agreed to fund a purchase by borrowing. A mortgage in the name of the husband, for example, stays in the husband’s name.
These distinctions are necessary because of how each affects divorce settlements and the division of assets, and how debt is handled via a divorce decree or settlement. To help keep these organized, It is beneficial to create a list of all assets and debts you and your spouse have and include when and how they were assumed, current value, or outstanding balance.
Additionally, not all property has to be divided unless it is part of a divorce settlement. Any funds or property received before or outside of the marriage is considered the person’s property that received them. Thus, a lake house that has been in one spouse’s family for generations will remain the property of that spouse and will have no role in a divorce.
When splitting assets and debt, a judge will look at:
- The financial contributions of each spouse
- The reason for the divorce (whether one party is considered “at fault”)
- The relative health of both parties
- The length of the marriage
The following are some general rules governing how assets and debt are split in a South Carolina divorce.
Real estate acquired during the marriage, unless specified as separate from the union, will be distributed under the principle of equitable distribution. This type of distribution means that a piece of property owned by the couple will be part of a menu of assets divided up to make both parties whole in the sense of fair distribution.
Debt, however, does not work that way. If the husband and the wife are on the same mortgage, one will assume the mortgage but receive a similar asset to offset the debt. If a debt is in one of the party’s names and not the other, it stays in that person’s name, although equitable distribution would require an offsetting asset to be afforded that person.
401k, IRA, Investments
Retirement investments are handled slightly differently, although on the same principle of equitable distribution. One difference is the starting point of acquisition versus how much the couple put into it during the marriage.
For example, if one spouse had an investment purchased before the marriage, it likely would not be a dividable asset. If the couple purchased the investment during the marriage, it likely is dividable. If they bought the asset before the union and the person who bought it did not contribute to it during the marriage, but the other party did, it likely is dividable.
This law applies to all investments regarding how each one would be divided during the splitting of assets.
Businesses that are co-owned by the two parties come with many variables. For instance, the two parties might want to remain co-owners, even though their marriage is over. If one party owns the business, its divisibility depends on when the couple purchased it, who contributed to it, and when.
A business that the court determined to be divisible would be treated just like any other investment. If one party kept the company, the other party would receive whatever the court felt made the transaction equitable.
All other assets would be treated the same way. Whether the asset was acquired and which party contributed to it during the marriage would determine its divisibility. If it was awarded outright to one party or the other, the court would give an offset to the other party under equitable distribution rules.
Common-Law Marriage Considerations in South Carolina
South Carolina recognizes common law marriages, however this could be changing. That means the court will have to determine if the two parties are married even if they were not officially married. If the court decided the couple was not married, a divorce would not be appropriate, and neither would a division of assets. If the court decided the couple was married in the eyes of the law, the customary divorce laws and rules would apply.
One case bears out how tricky a common law marriage can be if the two parties decide to divorce. That would be Owens versus Owens. In Owens, a female’s claim that she was “married” to a male she cohabitated with was contested by the male. The female pointed out that the couple has behaved as if they were married.
Backing that assertion, they referred to each other as married publicly, then entered into contracts together as husband and wife, and opened a checking account as a married couple. They did not, however, file joint tax returns.
The court found that the couple was legally married, and she was entitled to equitable distribution.
Alternatives to Divorce in South Carolina
If a couple does not want to go through the lengthy divorce process, there are options to try to continue the marriage or keep it going in a different way that can benefit both parties.
A married couple may want to stay together for various reasons, including:
- A family business
- A desire to fix things
If this is the case, the couple can always go down the following paths as an option before considering divorce.
Although it is considered in other states, South Carolina does not recognize “legal separation.” If you wish to file a no-fault divorce with your spouse, you can live separately for one year, in which you are then entitled to file under no-fault, as long as both parties have not committed an at-fault offense.
If your marriage was never valid in the eyes of the law, you might be able to file for an annulment instead of divorce. An annulment means that the law will show your marriage was invalid and revoked. This can be the case in marriages that involve:
- Emotional Duress
- Mental Disability
You will have to prove the reason for your annulment request through the court, which can be just as stressful as going through a divorce. However, after an annulment, both you and your spouse can claim you were never married by law. This option can be a better pick in terms of keeping assets.
Work It Out Together
If you and your spouse want to work things out together, there are many avenues to keep trying. Many Americans struggle with relational issues, and these problems can often be solved by going to couples’ counseling or learning new communication skills.
If you’re genuinely interested in working things out with your partner instead of going through a divorce, a marriage counselor in South Carolina can help. Finding someone who can help you talk through your marital problems and teach you new relational skills may be all you need to keep going in your marriage.
For counseling to work, both parties must be willing to attend sessions and try.
Considering a divorce can really take an emotional toll on even the strongest people.
If you are in need of therapy with both privacy and convenience, we recommend Online-Therapy.com. Their incredible service gives you access to instant professional help, on any device, wherever you are in the world.
For particular married couples, sometimes the problem in their marriage is that one or both parties are not receiving what they need from each other in terms of affection and sex. In this case, some people may want to consider an open marriage. An open marriage allows space for both partners to explore what they want and still be married.
For a married couple with children, sometimes keeping the family together and causing less stress is the way to go. If this sounds like you, a parenting marriage might be your best option. In this type of marriage, the two parties stay together to parent their children or come up with a co-parenting arrangement that works for both of them and the children involved.
A parenting marriage might not be the best option if either party wants a divorce or would like to remarry or date someone else.
Divorce in South Carolina follows a very prescribed process. The guiding principles in a divorce are whether the divorce is contested, one party was at fault, and equitable distribution. Above all else, the best advice a person could give regarding divorce in South Carolina is to hire an attorney and not risk going it alone.