While divorce can be a painful and drawn out process, there are alternatives. Spouses seeking simpler divorces can apply for an uncontested divorce, which cuts out the role of the lawyers and anger in the divorce process. Spouses who remain amicable and can agree on the terms of their divorce may qualify to get an uncontested divorce.
This article will explain the nature of an uncontested divorce and South Carolina uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested Divorce in South Carolina Defined
Unlike many other states, South Carolina does not recognize an explicit category of uncontested divorces. South Carolina divorce law developed out of adherence to medieval ecclesiastical court traditions, and thus, the state has been slow to adopt modern divorce procedures. That said, for couples seeking a simpler divorce under South Carolina law,* South Carolina courts can facilitate that desire.
The closest counterpart to an uncontested divorce in North Carolina is a no-fault divorce in which both spouses agree on the terms of the divorce. Under a no-fault divorce, neither spouse admits fault for the breakdown of the marriage, but the spouses simply express their desire to lead separate lives. While no-fault divorces may be contested like at-fault divorces, the prior signing of a marital separation agreement can resolve problems between the parties amicably.
Requirements for Seeking a South Carolina Uncontested Divorce
To file for uncontested divorce in South Carolina, the filing spouses must meet certain requirements. Any questions about these requirements can be answered by an experienced South Carolina divorce attorney or family lawyer.
The first requirement is the state residency requirement. In South Carolina, if both of the spouses live in within the state, either spouse can file for divorce within three months of living within South Carolina. However, if either of the spouses are non-residents of the state, at least one spouse must have lived in South Carolina for at least one year prior to filing for divorce. Additionally, the residency requirement requires “domicile” as opposed to mere “residence.” Domicile requires that the resident spouse must intend to remain living within South Carolina and has no immediate intent to move out of state.
The second requirement is the grounds for divorce. Unlike other states, South Carolina does not let couples seeking an uncontested divorce to separate immediately. Instead, the couple has not satisfied the grounds for seeking an uncontested divorce unless they have lived separately for at least a year.1 The reason for this period of separation is to give the spouses time to reconcile their differences, if possible. Once the spouses have lived apart for at least a year, however, South Carolina’s family courts will assume that divorce is proper.
The third and final requirement is agreement. South Carolina recognizes the validity of marital separation agreements, and grants South Carolina family courts jurisdiction to adjudicate those contracts and merge them into its final divorce decrees.
On Spousal Support and Separation Agreements
When spouses sit down to discuss the terms of their divorce, it is often beneficial for the spouses to sign a legal separation agreement. A separation agreement is NOT a formal divorce. A separation agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed separation agreement can serve as the basis for an uncontested divorce, and may be helpful in filling out the required divorce paperwork. Prior to signing any separation agreement (or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you.
A fully complete marital separation agreement should state the spouses’ agreement on all of the following issues in the divorce:
- Division of marital property and division of marital debt obligations;
- Alimony (also known as spousal support or maintenance);
- If applicable, child custody, visitation, and a parenting plan; and
- If applicable, child support (note that an agreement on child support must adhere to the required statutory guidelines for child support2
The Process for Filing for an Uncontested Divorce in South Carolina
You must file your divorce paperwork with the family court in a county that can legally grant you a divorce. Under South Carolina law, this means that you must either file (1) in the county in which the non-filing spouse resides, (2) in the county in which the filing spouse resides if the non-filing spouse is a non-resident, or (3) in the county in which the parties last resided together unless the filing spouse is a non-resident. Make sure to file in the correct court, because failure to file in the correct court could result in the dismissal of your case.
Once you have determined which court is the proper court for filing, the general flow of the process is follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly;
- Next, you should acquire the required divorce forms. For spouses who wish to avoid hiring an attorney, sample divorce forms are provided on the South Carolina Judicial Department’s website.3
- You and your spouse should then sit down together and agree on the terms of the divorce and draft a marital separation agreement.
- Once the paperwork is concluded, the divorce filing should be submitted to the proper family court. The filing spouse must then serve the non-filing spouse with the divorce paperwork. The non-filing spouse should then submit the proper response.
- Once all of the divorce paperwork has been correctly filed, the court will rule on your divorce. Unlike other states, South Carolina has no additional waiting period before a court may grant an uncontested no-fault divorce.
* A special note on divorce in South Carolina. South Carolina does not recognize the validity of divorces obtained by South Carolina citizens in other jurisdictions. This means that if either you or your spouse is domiciled in South Carolina, you MUST seek a divorce under South Carolina law for the state of South Carolina to honor your divorce.
Note: This article is not legal advice. Please consult a lawyer for your specific situation.
- South Carolina does recognize four at-fault grounds for divorce, but at-fault divorces are rarely uncontested. SeeS.C. Code Ann. § 20-3-10. Spouses who qualify to file for an at-fault uncontested divorce must wait three months after the filing of the divorce complaint for the court to grant a divorce. SeeS.C. Code Ann. § 20-3-80
- S.C. Code Ann. § 20-3-160.
- Self-Represented Litigant Simple Divorce Packets, South Carolina Judicial Department