How to File For Divorce In South Carolina
Table of Contents
- South Carolina Divorce Requirements
- GROUNDS FOR A SC DIVORCE
- HELPFUL TIPS!
- STEP 1: STARTING THE DIVORCE PROCESS
- STEP 2: LEGAL NOTICE TO SPOUSE
- STEP 3:CONTESTED / UNCONTESTED DIVORCE?
- STEP 4: DIY OR HIRE A LAWYER?
- STEP 5: FIGURING OUT THE BIG ISSUES
- STEP 6: FINALIZING YOUR SC DIVORCE
South Carolina Divorce Requirements
- If you’re filing for divorce in South Carolina:
- The plaintiff should have lived in the state for a period of at least 1 year before filing for divorce.
- If the plaintiff is a non-resident of South Carolina, the defendant spouse should have lived for a period of at least 1 year before filing for divorce provided that both spouses were the residents of South Carolina when the action for divorce was filed and the plaintiff should have lived in the state only 3 months before filing for divorce.
- The divorce must be filed or the action for support and maintenance should be filed in the county:
- Where the defendant lives when the action was started.
- The county where the plaintiff lives in case the defendant is a non-resident or if he/she cannot be located.
- The county where both spouses last lived as a married couple, unless the plaintiff’s spouse is a non-resident, in which case, the divorce must be filed in the county where the defendant lives.
- The final divorce decree will be granted within 3 months of filing the divorce complaint with the court.
- However, if the plaintiff filed for divorce on the grounds of being separated from his/her spouse for 1 year or desertion, then the hearing will be held and the divorce decree will be issued once the responsive pleadings are filed or if the defendant spouse is ruled to be in default.
GROUNDS FOR A SC DIVORCE
In South Carolina, no divorce will be granted by the court except on the basis of one or more of the grounds mentioned below:
- If the couple has lived separately and apart for a period of 1 year without cohabitation.
Below are the grounds for a fault-based divorce:
- Desertion for a period of 1 year
- Physical cruelty
- Habitual drunkenness or drug abuse
- Save Time & Money: You can use an online service like 3stepdivorce.com that will prepare all your paperwork within hours. You simply answer questions and your answers are used to fill out the correct forms. See our online divorce service reviews here for more information.
- State Fee: To file for divorce in South Carolina, the filing fees is around $150. However, if you cannot pay the fee, you can file a “Motion and Affidavit to Proceed In Forma Pauperis”. If the court approves your motion, then you will not have to pay the fees for filing your papers and also the service fees charged by the sheriff’s office.
- Lawyer Costs: If you decide to hire a lawyer, then your divorce could cost between $4,000 and $28,000 and the attorney’s fees can cost around $10,000 on an average.
- State Site: You can get complete information about the divorce process in South Carolina, here.
STARTING THE DIVORCE PROCESS
Documents Needed for Filing
The basic forms needed to begin the divorce process in South Carolina are:
- Family Court Cover Sheet: This is filled in by the plaintiff and contains the contact information and has information about the type of divorce action.
- Certificate of Exemption: This certifies that the divorce action is exempt from mediation and that both spouses have agreed to custody, visitation, etc.
- Summons: Informs the defendant that a divorce action has been filed and gives 30 days to file his/her “answer” or accept a default judgment.
- Complaint for Divorce: Specifies that both parties qualify for a simple divorce and waive claims for spousal support.
- Financial Declaration Form: Has information about the financial situation of both spouses. This form must be signed in front of the notary public only.
Filing Your Forms
Once you have completed the forms, you can then file the papers with the court clerk in the county where your spouse and you lived together as a couple or where you reside in case your spouse is not a resident of the state or in the county where your spouse resides when you are filing for divorce. If you are filing for divorce in the state of South Carolina, but don’t reside here, then you should file for divorce in the county where your spouse resides.
LEGAL NOTICE TO SPOUSE
Once you have filed the forms at the appropriate court, you must serve them to your spouse and this can be done in one of the following ways:
- Personal Service: If your spouse is served personally, then your he/she must sign the “Acceptance of Service” form and you must file this with the court.
- US Mail: The papers must be sent by certified mail with restricted delivery and return receipt requested. Your spouse must sign the receipt. You must fill in the “Affidavit of Mailing” and file it along with the receipt with the court clerk.
- Sheriff’s Office: After delivering the papers, the Sheriff’s office should complete the “Acceptance of Service” form, which you must file with the court clerk.
- Private Process Server: This is where you hire a 3rd party to deliver the papers for a fee.
In case you are unable to locate your spouse within the state to serve the papers, then the court may order you to make the service by publication of the summons in a newspaper.
CONTESTED / UNCONTESTED DIVORCE?
When your spouse and you are unable to agree on some or most of the issues regarding the divorce, then your divorce is a contested divorce, which will go to trial and be heard by a judge and who will resolve the issues for you.
In the case of a contested divorce, both your spouse and you will have to hire a divorce attorney, who will present the case on your behalf, present testimonies, witnesses, etc. Usually, contested divorces take a long time and are quite expensive too.
You can get a no-fault divorce in South Carolina, where your spouse and you do not blame one another for the divorce and you do not have to prove any marital misconduct in order to get a divorce. All that is required is that you must prove that you have been separated for 1 year.
If your spouse and you are seeking a no-fault divorce, then you can opt for the “simple divorce” process, but you can do this only if you meet the other criteria mentioned below. In the case of a simple divorce process, even if either you or your spouse have been at fault in some way, these issues can’t be raised during the divorce proceedings.
The requirements in the case of a simple divorce are:
- Your spouse or you have lived in South Carolina for a period of at least 1 year before filing for divorce or both your spouse and you live in the state and have lived there for a minimum of 3 months before filing for divorce.
- The divorce is being filed under the no-fault grounds with 1 year of separation continuously, without cohabitation at any time during the year.
- Your spouse and you do not have any marital property or debt or both of you have an agreement on how to divide the property or debt.
- Your spouse and you don’t have children together or if you have minor children, you have an agreement regarding all issues pertaining to your kids.
If you meet all the requirements stated above, then you can fill out the forms and get a simple divorce.
DIY OR HIRE A LAWYER?
DIY Divorce (Slow & Least Costly)
You can file for divorce without the assistance of an attorney if your spouse and you have lived separately for a period of 1 year continuously.
You can use the divorce packet of forms that are approved by the court and is available online, free of cost. Alternatively, by paying a nominal fee, you can buy the forms from your local courthouse.
Online Divorce Service (Fast & Inexpensive)
If you do not want to hire a lawyer, but don’t really know about how to fill out the right forms for your divorce, then you can take the help of an online divorce service. Our favorite and most trusted service in the space right now is 3stepdivorce.com and you can get started as low as $84 over 4 months or less, or just pay a flat $299 fee.
The online service asks you questions regarding your case, which you must answer correctly. Once you complete this, your forms will be created, which you can print out and submit to your local court along with the prescribed fee. The online service will charge you a fee for the services they provide.
Hire an Attorney (Longer & Expensive)
If both spouses do not have an agreement on all the issues of the divorce, then the case will go to trial, where it will be heard in the court by a judge. The judge will then hear both sides of the case, the witness testimonies, review all the evidence and ask questions about the case and then take decisions on the various disputed issues. Usually, divorce trials take a long time.
Going this route is definitely the route to avoid if at all possible but if both spouses can’t come to an agreement, we highly recommend that you contact an attorney.
FIGURING OUT THE BIG ISSUES
Division of Property and Debt
The marital property is divided in an equitable manner as South Carolina is an “equitable distribution” state. The court will divide the property between your spouse and you after considering the following factors:
- Duration of the marriage.
- Age of both spouses.
- Misconduct or marital fault.
- Current property value.
- Contribution of each party to the acquisition of the property.
- Income of each party.
- Each spouse’s earning potential.
- Health of each party.
- Separate property of each party.
- Tax consequences and retirement benefits of each party.
- Debts and expenses of each party.
- Custody arrangement in case there are children.
- Other relevant factors.
SC Spousal Support
The spousal support is decided either by both spouses or at the discretion of the court. When the court makes the award of the alimony, it usually considers the following factors:
- Length of the marriage.
- Ages of both spouses when they were married and at the time of their divorce.
- Emotional and physical condition of each party.
- Educational background of each party along with the need of each party for additional education or training to achieve his/her income potential.
- Employment history and the earning potential of each party.
- Standard of living maintained while both parties were married.
- Present earnings and anticipated earnings of both parties.
- Present and anticipated needs and expenses of both parties.
- Marital and separate properties of both parties and the property awarded to him/her in the divorce action.
- Custody of children, especially where the situation is not appropriate for the spouse with custody not to seek employment outside the home.
- Fault or marital misconduct of either/both parties.
- Tax consequences of each spouse because of a specific type of support awarded.
- Any other relevant factors.
SC Child Custody Laws
In South Carolina, when deciding on the custody of the child, the court will consider the reasonable preference of the child in terms of the custody. The court will consider the child’s preference on basis of his/her age, maturity, experience, judgment and capability of expressing his/her preference.
The court will also consider the nature of divorce and current situation, the religious faith of both parents and any evidence of domestic abuse or violence. The court will not award custody or discriminate on the basis of the gender of the parent.
SC Child Support Laws
In South Carolina, the child support is calculated on basis of the income shares model. If there is any deviation from the guidelines, the court will consider the following factors:
- Education expenses of the child or spouse.
- Distribution of property.
- If the family has more than 6 kids.
- Mandatory deduction of union fees and retirement pensions.
- Unreimbursed extraordinary medical/dental expenses of child and non-custodial or custodial parent.
- Support obligations of the paying spouse for other dependents residing with the non-custodial parent or child from another relationship.
- Monthly payments ordered by the court.
- Significant income of child that is available.
- Disparity of income, where the income of the non-custodial parent is much lesser than the income of the custodial parent.
- Any agreement made by both spouses.
FINALIZING YOUR SC DIVORCE
Once you have served the papers to your spouse, your spouse must give you an “answer” or if your spouse agrees with all the things mentioned in the complaint, then you can proceed with the final divorce.
In case your spouse files an answer that disagrees with any part of your complaint, then you must hire a divorce attorney to fight the case on your behalf.
In case you are proceeding without any opposition from your spouse, you must then complete the “Affidavit of Default for Divorce” and “Request for Hearing” forms and file them.
You will then receive the “Notice of Hearing”, which will inform you about the court date of your hearing and you must mail a copy of this to your spouse by certified mail. You must then complete the “Affidavit of Mailing” in the presence of a notary public.
Complete the “Final Order of Divorce” and “Report of Divorce.” At the hearing, you must bring along a witness who can testify that he/she has personal knowledge that your spouse and you have lived separately and apart for a period of 1 year. You must bring along all the documents to the court.
At the hearing, the judge will ask you questions regarding your documents, your marriage and your separation. The judge will then sign the final divorce order. Your divorce will be final only when the divorce order is signed and is filed with the court clerk.
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