Will I have to go to Court?

Do you have to go to Court to finalize your divorce case?  Yes.  In order for you to finalize your divorce case in South Carolina and get a divorce decree you must appear in court if you are the plaintiff in the case.  That means if you were the one who hired the attorney and filed the papers at the court house for divorce, you must appear in court and provide evidence to the court regarding the reason for your divorce (prove the grounds for divorce like one years separation or adultery).  You must also testify to things relating to your case such as the agreement you and your spouse have signed or the reason you should be entitled to custody of your children.Depending on the complexity of your case, your final hearing may last five minutes or less or it may last several days or weeks.In many cases, you will be required to have a witness (or many witnesses) depending on what needs to be proven in your case.

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.

How Do We Get Into a Marriage?

Well, this blog talks a lot about divorce issues and how to get out of a marriage, but so far we haven't talked about how to get into a marriage.  In South Carolina there are two ways to get married and over the next couple of days we will talk about each way to get married.The first way is a statutory marriage.  This is what you think of when you and your bride/groom-to-be run down to the local probate court and fill out your marriage license request and then a few weeks later you gather together with 500 of your closest friends to celebrate the big day.  Check out our post later on to see what the requirements are for you to qualify for that marriage license.The second way for you to get  married in South Carolina is more passive.  You may not even intend to be married, but you could in fact be married according to a judge.  Yup, it's the old fashioned common law marriage.  When we talk about common law marriage we will define it as well as put down some of the rumors and incorrect ways of being "common law married."So stay tuned and prepare for these new posts coming in the days ahead.

Can You Guarantee a Fast Divorce

Occasionally I am asked by someone to guarantee that I can get their divorce done by a certain date.  This happens for a variety of reasons (sometimes because there is another wedding planned) but the bottom line is that they want the divorce to be finished fast!  So how long does it take to get a divorce?  Are there loop holes that some attorneys know to get the divorces over faster?The truth is, a lawyer simply cannot guarantee with a whole lot of certainty when a case will be done.  Based on how long I've been practicing and how many cases I have handled I can make a pretty good guess at when a final hearing might take place in a fairly simple case (like a South Carolina uncontested divorce case where there are no issues).  However, in a case where there are substantial issues like custody or property division the things that effect the length of time a case could take begin to multiply and compound.So, can I guarantee when a case will be over?  No.  The only guarantee I can make is that we will work as hard as we can for you.  While I understand that any type of legal matter is stressful and is usually better when it is over, it may not be to your best interest to buzz through the case just so it is over.But, just so you don't feel like I totally wimped out on this answer, here is a general timeline for an uncontested divorce case in South Carolina (and more specifically Greenville County).  First, the complaint must be filed with the Family Court.  After the complaint has been filed, it must be served on your spouse.  In some cases, the couple is working together to resolve their case and service is quite simple and fast.  But there are other cases where the spouse is avoiding service of the complaint and it takes much longer to get them served.  Once your spouse is served, he/she will have 30 days to file an answer or respond to our complaint.  If they are in agreement (like they are many times in an uncontested divorce) they sign an Answer that agrees with what we asked for in a complaint and we are able to move on to the next step.  Sometimes, however, they do not sign the answer or they just forget about things.  When this happens, we have to wait for the entire 30 days to pass before we can move forward.  The other thing that might happen is for your spouse to hire an attorney which may transform your case from an uncontested case to a contested matter with issues.  The next step (if the case is uncontested) is to request a hearing.  The hearing can be requested either after the 30 days has passed or after your spouse has signed the Answer agreeing to the relief you requested.  Then we wait on the Court to set our hearing.  The time it takes for the Court to set your final hearing varies from county to county.  Greenville County is fairly quick with uncontested final hearings being set about 7 weeks from the date of request.  Other counties that are smaller and have fewer family court judges take longer to get a case set.  Some counties take four months or longer.I hope that helps show you some of the complexities and variables that play into determining how long it is going to take to finish your case up.  So, next time if you ask your divorce lawyer how long, don't be surprised when he says, "it depends."

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.