"Legal" Separation for South Carolina No-Fault Divorce
Question:I am seeking a divorce from my spouse. There are no fault-based grounds for me to file on so I have to wait for the year to pass before I file for divorce. Do I have to file for legal separation in order to start the time running for my divorce?Answer:Thanks for your question. I’m sorry to hear that you are contemplating divorce, but to answer your question, no, you are not required to file for a legal separation in order for the time to begin running. South Carolina law requires that in order to obtain a no-fault divorce the couple must live separately for more than one year. So the clock starts to tick the very first day that you and your spouse live in separate residences. It is important to note that your separation cannot be that you have moved into the bedroom down the hall. You must physically live in a different residence from your spouse to start the separation clock.
What's a Reason for Divorce
While I know there are many reasons and circumstances that lead to a couple or spouse determining it is time for a divorce, South Carolina only grants divorces when you are able to prove one of five divorce grounds. Over the coming days we are going to delve into the five divorce grounds in depth, but today I want to highlight them for you and let you know what you are in store for.So what are divorce grounds? Divorce ground are the reason you are getting a divorce that state law recognizes as a way to get divorced? For example, if your spouse cheats on you it is possible to proceed with a divorce on the grounds of adultery. However, if there are no specific fault based reasons for divorce but you and your spouse simply can't stay married for any other number of reasons you would proceed on the no-fault ground for divorce in South Carolina which is by being separated from your spouse for more than one year continuously.The five divorce grounds in South Carolina are:
- Physical Cruelty
- Habitual Drunkenness and Drug Use
- Adultery
- Abandonment
- More than one year's continuous separation.
The first four grounds listed above are all fault based grounds. Number five is the no-fault divorce ground in South Carolina. If you file for divorce using a fault-based ground, you must wait at least 90 days from the date of filing before you can request a final hearing. Stay tuned for a more detailed discussion of each of the divorce grounds coming soon.
What is an Uncontested Divorce in South Carolina?
So what is an uncontested divorce in South Carolina? There are several things that must be in place before your divorce is considered uncontested. An uncontested divorce looks good to people because they believe it can be obtained more cheaply and quicker than trying to duke it out in court.Sometimes it makes sense to proceed with trying to get an uncontested divorce. I have met with a lot of potential clients recently who have been living separate from their spouse for many years. They have moved on emotionally and physically, but they have never done anything about the marriage.An uncontested divorce is good when the couple does not have any property to divide, when there are no children, and when there is no alimony to be paid from one spouse to the other. If there are issues like property that must be divided, child custody, property division, alimony, child support and so on then you may need to forget about the uncontested divorce and make sure you are protected.If you and your spouse are able to work out those issues, it is normally possible for you to put your agreement in writing is a separation agreement which is presented to the court for the court's approval. This agreement must settle all issues in the marriage before you can proceed like the divorce is an uncontested divorce.Finally, an uncontested divorce is filed on the grounds of more than one year's continuous separation. Without going into a huge discussion of the law on what that means, basically it means that you have been voluntarily separated from your spouse for more than one year. Voluntarily means that the separation is not due solely because your spouse is incarcerated or because they have been deployed by the military. Separated means they are living in a totally separate residence. Not that they are sleeping in the bedroom down the hall or the basement or not because you haven't had sex in over a year. Finally, you must have been separated as described above for more than one year or you cannot ask for a divorce on that ground.For a description of what the process is like, and more information about uncontested divorce visit the South Carolina Uncontested Divorce page on this blog.
Is a Divorce Final the Day of the Hearing in South Carolina
So you've made it. You are scheduled for your final divorce hearing and you just want to know when your case is going to be final and over with. Your case is not necessarily final and done on the day of your final hearing, but in many cases it is.Before your case is final, the judge must sign a divorce decree or a final order. This order must then be filed with the clerk of court's office. In many uncontested cases, I make sure that I have prepared the orders prior to the hearing so the judge may sign the order while we are in the court room. This helps speed up the process and usually I can safely confirm that you are officially divorced. However, in some cases, the judge may take all of the evidence under advisement and make a decision at a later time. In some cases, you do not know what the judge is going to order so you cannot prepare an order ahead of time. At this point, you must prepare the order after the hearing and sometimes it can take a few weeks to get the order back from the Court.The simple answer is that it usually depends on the complexity of the case and the length of the final hearing to determine how long it is going to take to have your case finalized and your divorce official.
Do I Have to Be Separated for One Year to Get a Divorce?
I know a lot of the talk on this blog is about uncontested divorces and I talk about how you have to be separated for more than one year before you can file for divorce. But that is not always the case.
If you are filing for a no-fault, uncontested divorce, I'm sorry but you have to wait the full year out before you can file for divorce. There is some proposed legislation floating around in Columbia that would allow a no fault divorce to occur after 180 days; however, that is not the law at this time.If you are filing based on a fault-based ground of adultery, physical abuse, and habitual drunkenness you do not have to be separated for more than one year. You don't even need to be separated at all (though it is a good idea in most cases). There are some time limits in place such as a minimum of 60 days from the date of filing to have a final hearing and 90 days must elapse before a final order of divorce can be issued by the court.
Can I get Divorced in South Carolina if I was Married in Another State?
I am faced with this in my practice every day. A prospective client comes in who went with their spouse to Gatlinburg or Las Vegas to get married or maybe they are from another part of the country and find themselves at this time in South Carolina facing a divorce.South Carolina law will allow you to get a divorce in South Carolina no matter where you were married. Basically, this is a question of jurisdiction - meaning what kind of cases the court can hear. In order for a South Carolina Family Court to hear your divorce case you must meet a few criteria.First, if both you and your spouse are South Carolina residents then you can file your divorce here. Second, if you are not a South Carolina resident, but your spouse is, you can file in South Carolina. Third, if your spouse is not a resident, but you have lived in South Carolina for more than one year you may file in South Carolina.So, it boils down to whether you or your spouse are currently residents of South Carolina to determine if you can file for divorce in a South Carolina Family Court.
Proving One Year Separation
The no-fault ground for divorce in South Carolina is to prove that you and your spouse have lived separately and apart for more than one year. That means that you have intentionally and voluntarily lived in a separate residence from your spouse for more than one year. This does not include sleeping in the guest bedroom down the hall.Many clients ask me if they need to bring in a copy of an apartment lease or hotel receipt to prove the time they moved out. Usually this is not necessary. You will simply testify that you moved out or separated from your spouse on a certain date. Then you will need a witness who knows you well enough that if you were to get back with your spouse they would probably know about it. Someone who visits your home regularly and calls you on the telephone regularly. This witness needs to be at least 18 years old, can be a family member or friend, but should not be a child of the marriage. Their testimony will corroborate yours and that will be enough proof for your divorce.
What Happens If I Don't Know Where My Spouse Is?
Question: I would like to get a divorce from my spouse, but I do not know where they are or how to find them. Is it still possible to get a divorce from them?Answer: In order for the family court to hear your case they must have personal jurisdiction over you and your spouse. The court gets this personal jurisdiction over your spouse when they are served with the complaint (the papers filed with the family court). Usually this is done by personally serving your spouse according to the South Carolina Rules of Civil Procedure. Typically, you would have a process server or some independent third party serve your spouse by personally handing them the papers.Well, clearly this can't be done if your spouse is no where to be found. In this case, you must serve them by publication. What that means is that an advertisement or legal notice is run in the legal notice section of a newspaper of "general circulation" in the county where your spouse was last known to reside. In order to run this advertisement; however, you must perform a diligent search for your missing spouse and then file a motion asking the family court's permission to serve your spouse by publication and including an affidavit stating everything you have done to attempt to locate your spouse.Once your motion has been approved, a legal notice is run one per week for three weeks. At the end of the third week, your spouse has 30 days to respond. If there is no response, then your spouse is in "default" meaning they have not responded and you can proceed with your case.