Filing for divorce in South Carolina involves more than just deciding your marriage is over. The state has specific legal requirements, procedural steps, and mandatory waiting periods that you must follow to legally end your marriage.
Before filing for divorce in South Carolina, you must establish legal grounds for ending your marriage. The state recognizes both no-fault and fault-based grounds for divorce, and your choice can significantly impact the process timeline and outcome.
The One-Year Separation Requirement
South Carolina's most common ground for divorce is the no-fault option, requiring spouses to live separate and apart without cohabitation for one full year. This is the only no-fault ground available in South Carolina, unlike many other states that allow divorce based simply on irreconcilable differences or an irretrievably broken marriage.
Living separately and apart means residing in different homes. Staying in separate bedrooms in the same house doesn't satisfy this requirement. Additionally, you cannot have any sexual relations during the separation period, as this could restart the one-year clock.
The separation period can feel like a long wait, but it serves important purposes. It gives couples time to carefully consider whether divorce is truly the right choice, allows them to work out practical arrangements for children and finances, and ensures divorces aren't granted impulsively during temporary difficulties.
Fault-Based Grounds for Divorce
If you don't want to wait a full year for a divorce, South Carolina allows immediate filing based on fault grounds. However, fault-based divorces typically take longer, cost more, and require attorney representation because you must prove your allegations with evidence.
The four recognized fault-based grounds are:
Adultery
Your spouse engaged in extramarital sexual relations. You'll need evidence beyond mere suspicion, and courts examine these claims carefully since adultery can affect alimony eligibility and property division.
Physical Cruelty
Y our spouse physically abused you to such a degree that your life and safety were at risk, making it unsafe to continue living together. You must have corroborating evidence or witness testimony. Physical cruelty requires more than a single incident unless it was particularly severe.
Habitual Drunkenness
Your spouse regularly abuses alcohol or drugs. The law defines habitual drunkenness broadly to include narcotic drug abuse. You must show a pattern of excessive drinking or drug use, not just occasional overindulgence.
Desertion
Your spouse abandoned you for at least one continuous year without your consent and without good reason. The deserting spouse must have left voluntarily and without justification.
One critical warning about fault-based grounds: South Carolina courts will not grant a divorce if they discover the spouses colluded or agreed to falsely claim fault grounds just to avoid the one-year separation requirement. If your agreement to use fault grounds appears contrived, the judge will deny your divorce.
Meeting South Carolina Residency Requirements
You cannot file for divorce in South Carolina unless you meet specific residency requirements. These rules prevent people from temporarily moving to the state seeking more favorable divorce laws.
Residency Options
South Carolina provides three pathways to satisfy residency requirements:
- If both you and your spouse live in South Carolina when you file, at least one of you must have resided in the state for at least three consecutive months before filing.
- If only one spouse lives in South Carolina, that spouse must have resided in the state for at least one full year before filing for divorce.
Special Considerations for Child Custody
Even if you meet the residency requirements for divorce, South Carolina has additional requirements for addressing child custody. Generally, a child must have lived in South Carolina with a parent for at least six months (or since birth if younger) before the court can make custody determinations.
Some exceptions exist to this six-month rule, but they're difficult to prove. If you have questions about whether you meet the custody jurisdiction requirements, consult with a family law attorney before filing.
Contested vs. Uncontested Divorce
One of your first decisions when filing for divorce is whether your case will be contested or uncontested. This distinction dramatically affects how long your divorce takes, how much it costs, and whether you need an attorney.
Uncontested Divorce Requirements
An uncontested divorce, also called a simple divorce in South Carolina, requires complete agreement between spouses on all issues. To qualify for the simple divorce process using self-help forms, you and your spouse must:
Agree on how to divide all marital property and debts, or have no marital property or debts to divide. Either have no minor children together and none expected, or have reached a complete agreement on child custody, visitation, and child support that meets South Carolina's Child Support Guidelines. Meet the residency and separation requirements described above.
If your divorce will be truly uncontested, you should also have an agreement about whether either spouse will pay alimony, and if so, how much and for how long.
Uncontested divorces move through the court system much faster and cost significantly less than contested divorces. Most couples can handle uncontested divorces without attorneys, though many choose to have lawyers review their settlement agreements.
When You Need a Contested Divorce
If you and your spouse disagree about any aspect of your divorce, your case becomes contested. Common disagreements involve property division, alimony amounts or duration, child custody arrangements, visitation schedules, and child support amounts.
Contested divorces require multiple court hearings, formal discovery to gather evidence, and usually attorney representation for both parties. The process typically takes a year or longer to complete and costs substantially more than uncontested divorces.
The Order of Separate Maintenance and Support
South Carolina's one-year separation requirement for no-fault divorce creates practical challenges for couples who need court orders addressing financial support, custody, and living arrangements during separation but before they can file for divorce.
To solve this problem, the state allows separated spouses to request an Order of Separate Maintenance and Support. This temporary order addresses spousal support, child custody and visitation, child support, which spouse stays in the family home, and other financial matters while you're separated but not yet divorced.
To request these temporary orders, you or your attorney files a Summons and Complaint for an Order of Separate Maintenance and Support, along with a Notice and Motion for Temporary Relief. After serving your spouse with these documents, your spouse has 30 days to file an answer. A judge then decides the issues, or you can submit an agreement for court approval.
The temporary order remains in effect until your divorce is finalized, at which point the divorce decree's terms replace the temporary orders.
Step-by-Step Guide to Filing for Divorce
Once you've determined you meet all requirements and your divorce will be uncontested or contested, you're ready to begin the formal filing process.
Step 1: Prepare Your Divorce Forms
Filing for divorce requires completing several official forms. The South Carolina Judicial Branch provides free divorce packets on its website for self-represented litigants. Separate packets exist for the plaintiff (the spouse filing for divorce) and the defendant (the other spouse).
South Carolina Legal Services also offers a self-help divorce forms tool that guides you through completing the necessary paperwork. Alternatively, online divorce services can prepare your forms for a fee.
For an uncontested divorce, the plaintiff must complete the Complaint for Divorce stating their grounds and what relief they're requesting, a Financial Declaration detailing their income, expenses, assets, and debts (must be notarized), the Family Court Cover Sheet for administrative processing, and a Certificate of Exemption certifying their case qualifies for simple divorce procedures.
After completing and signing all forms, make at least three copies. One goes to the court clerk, one stays with you for your records, and one goes to your spouse.
Step 2: File Your Divorce Papers
File your completed divorce papers with the Family Court Division clerk in the appropriate county. Which county you file in depends on your specific situation:
If you don't live in South Carolina but your spouse does, file in the county where your spouse lives. If your spouse lives out of state or cannot be located, file in the county where you live. If both of you live in South Carolina, file in the county where your spouse lives or where you last lived together as a couple.
The court clerk charges a filing fee, currently $150 in most counties. If you cannot afford this fee, you may file a Motion and Affidavit to Proceed in Forma Pauperis requesting a fee waiver. If approved, you won't pay filing fees or sheriff's fees for serving divorce papers.
Step 3: Serve Your Spouse
After filing, you must formally notify your spouse about the divorce through a process called service of process. South Carolina allows several service methods:
Voluntary Acceptance
The easiest method is having your spouse voluntarily accept service. Your spouse completes and signs an Acceptance of Service form, which you then file with the court.
Personal Service
Arrange for a sheriff's deputy, professional process server, or any adult not involved in the divorce to hand-deliver the divorce papers to your spouse.
Certified Mail
Send the divorce papers by certified or registered mail with return receipt requested. Your spouse must sign to acknowledge receipt.
Service by Publication
If you cannot locate your spouse, ask the court for permission to serve by publication, typically involving publishing notice in a local newspaper and mailing copies to your spouse's last known address.
Whichever method you use, you must file proof of service with the court, documenting that your spouse received proper notice.
Step 4: Wait for Your Spouse's Response
After being served, your spouse has 30 days to file an answer to your complaint. What happens next depends on whether your spouse responds and what that response says.
If your spouse files an answer agreeing with everything in your complaint, your uncontested divorce moves forward. Complete a Request for Hearing and file it with the court clerk to schedule your final hearing.
If your spouse files an answer disagreeing with any part of your complaint, your case becomes contested. You'll likely need to go through discovery, attend multiple court hearings, and potentially go to trial if you cannot settle.
If your spouse doesn't file an answer within 30 days, you can proceed with a default divorce. File an Affidavit of Default for Divorce along with a Request for Hearing and proof of proper service.
Step 5: Prepare for Your Divorce Hearing
Before your scheduled hearing, complete a Final Order of Divorce and a Report of Divorce or Annulment. Bring these documents along with all your other filed papers to the hearing.
You must attend the hearing even if your spouse doesn't. Bring a witness who has personal knowledge of your year-long separation to testify. This could be a family member, friend, or neighbor who can confirm you and your spouse lived apart for at least one year.
The South Carolina Courts website provides sample scripts to help you prepare for what to expect at the hearing. Reviewing these scripts reduces anxiety and helps ensure you answer the judge's questions appropriately.
At the hearing, the judge asks you questions, hears testimony from your witness, and reviews all your paperwork. If everything is in order, the judge signs the Final Order of Divorce and the Judgment in a Family Court Case form. Your divorce isn't final until these signed orders are filed with the court clerk.
Mandatory Waiting Periods
South Carolina law imposes mandatory waiting periods during the divorce process. No hearing can occur less than two months after filing your complaint. No final decree can be granted until at least three months after filing.
The exception is divorces based on one-year separation, which can be granted after 30 days following filing (though the hearing cannot be scheduled for at least two months after filing).
These mandatory delays mean even the simplest uncontested divorce takes at least three months from filing to finalization. Contested divorces typically take much longer, often a year or more.
Issues Addressed During Divorce
South Carolina family courts can address numerous issues when granting divorces. The specific issues in your case depend on your circumstances.
Property Division
South Carolina follows equitable distribution principles for dividing marital property. This means courts divide property fairly, not necessarily equally. Judges consider factors including marriage duration, each spouse's contributions to acquiring property, economic circumstances of each spouse, custody arrangements for children, and marital misconduct affecting economic circumstances.
Marital property generally includes everything acquired during the marriage, regardless of whose name is on the title. Separate property includes inheritances, gifts received by one spouse from someone other than their spouse, and property owned before marriage.
Spousal Support
Either spouse may request alimony, but specific rules apply. Courts consider numerous factors when deciding whether to award alimony and how much, including marriage length, ages of both spouses, physical and emotional conditions, educational backgrounds and earning potential, standard of living during marriage, and marital misconduct.
Importantly, a spouse who committed adultery cannot receive alimony unless both spouses signed a written settlement agreement or the court entered a permanent order of separate maintenance and support.
Child Custody and Support
Courts decide custody based on the best interests of the children, considering factors like each parent's relationship with the children, each parent's ability to provide for the children's needs, any history of abuse or neglect, and the children's preferences if they're old enough and mature enough.
Child support gets calculated according to South Carolina's Child Support Guidelines, which consider both parents' incomes, the number of children, parenting time arrangements, and additional expenses like health insurance and childcare.
Do You Need an Attorney?
Whether you need an attorney depends on your specific situation. You might handle your own uncontested divorce if you have a written settlement agreement covering all issues, no complex property or financial matters, and you're comfortable navigating court procedures yourself.
Consider hiring an attorney when your divorce involves significant assets or complex property division, business ownership or professional practices, disputes about custody, visitation, or support, concerns about hidden assets or income, or domestic violence or safety issues.
Alternative options include limited scope representation where an attorney handles specific tasks while you do the rest, consultation services to review your settlement agreement or answer specific questions, divorce mediation to help you reach agreements with your spouse, or online divorce services that prepare your forms for a flat fee.
Moving Forward with Your Divorce
Filing for divorce in South Carolina involves multiple steps and legal requirements, but thousands of people successfully navigate this process each year. Whether you choose to represent yourself in an uncontested divorce or hire an attorney for a contested case, knowing what to expect helps you move through the process more smoothly.
Take time to gather accurate information about your finances, property, and children before filing. Consider whether you truly meet all requirements, including the full separation period for no-fault divorces. Make copies of all important documents and keep careful records throughout the process.
Remember that divorce represents a new beginning, not just an ending. While the legal process can be challenging, approaching it with preparation and knowledge helps you protect your interests and move forward into the next chapter of your life with confidence.