Uncontested Divorce in South Carolina
Learn the requirements for obtaining a simple divorce in South Carolina.
Going through a divorce can be a very difficult and emotionally complex experience. Unfortunately, the legal process for divorce can be complex too. However, in South Carolina, there is an easier approach to divorce that you may be able to use called a “simple” divorce (this is sometimes referred to as an "uncontested" or "simplified" divorce in other states).
This article covers the requirements for obtaining a simple divorce in South Carolina. If you have questions, you should contact a family law attorney in your area.
What is a No-Fault Divorce?
In South Carolina, there are five grounds for a divorce. Four of the grounds (adultery, desertion for one year, physical cruelty, and habitual drunkenness) are fault-based grounds. If you want to file based on one or more of these fault grounds, you must seek the help of an attorney and plan for a more lengthy and complicated divorce.
The fifth ground allows couples to seek a "no-fault" divorce in South Carolina, which means neither spouse blames the other for the divorce. In a no-fault divorce, you don’t have to prove any sort of marital misconduct for a judge to grant the divorce - spouses only need to show that they have been separated for one year. However, even with a no-fault divorce, judges may still consider fault grounds when making decisions about other issues in the divorce, such as alimony and custody.
If you and your spouse are seeking a divorce based on separation (a no-fault divorce), you may be able to use what is known as the "simple divorce" process, but only if you meet a few other requirements, which are listed below. With the simple divorce process, if either spouse has been at fault in some way, those issues cannot be raised in the divorce proceeding.
Requirements for a Simple Divorce
To be eligible to file a simple divorce, you must meet the following requirements:
- you or your spouse has lived in South Carolina for at least one year prior to filing for your divorce, or you and your spouse both live in South Carolina and have lived there for at least three months before filing for divorce
- you are filing for divorce based on the no-fault ground of one year continuous separation, without living together at any point during that year
- you have no martial property and/or marital debt, or you have reached an agreement on how to divide the marital property and/or debt, and
- you have no children with your spouse and none are expected, or you have minor children together and have reached an agreement about custody, visitation and child support (and the child support agreement meets the minimum requirements set by South Carolina Child Support Guidelines).
If you meet all of the above requirements, then you may follow the steps below to fill out the forms for a simple divorce.
If you do not meet all of the requirements, or you have questions about your case, you need to talk to a lawyer. The court is not allowed to answer questions about your particular case or your legal rights.
The Simple Divorce Process
All the forms you will need for this process can be found at the South Carolina Judicial Department website here. Instructions for the person filing for divorce, the “plaintiff,” are here, and instructions for the other spouse, the “defendant,” are here.
File the Complaint
The first step is to file the following papers with the Clerk of Court, Family Court Division:
- Financial Declaration Form (do not sign this form until you are in front of a notary public)
You may file in the county where you and your spouse last shared a residence, in the county where your spouse lives at the time of filing, or in the county where you live, if your spouse is not a resident of South Carolina. If you are filing in South Carolina, but do not live in the state, you must file in the county where your spouse (the defendant) lives.
Some of the forms must be signed while you are in front of a notary public. Do not sign the forms that require notarization until you are in front of a notary public.
After completing all the forms, make at least two copies of everything. The court will keep one, you will need one for your records, and you will need a copy for your spouse.
The clerk of court will charge a fee to file the papers. If you are unable to pay the fee, you may file a Motion and Affidavit to Proceed In Forma Pauperis. If your motion is approved, you will not have to pay filing fees or Sheriff’s Office service fees (if applicable).
Serve Your Spouse and File Proof of Service
After filing your forms with the appropriate Clerk of Court, you will need to “serve” (deliver) a copy of the forms to your spouse. There are four ways to serve your spouse:
- U.S. Mail (send certified mail, restricted delivery, return receipt requested; receipt must be signed by your spouse; you must also complete an Affidavit of Mailing, sign it in front of a notary and file a copy, along with the green card, with the Clerk of Court)
- Personal Service (your spouse must sign an Acceptance of Service form and you must file a signed copy with the Clerk of Court)
- Sheriff’s office (Sheriff’s office must complete a notarized Acceptance of Service form after delivery and you must file a copy with the Clerk of Court), or
- Private Process Server (this is a paid private service that involves a third-party delivering the papers to your spouse).
Finalize the Divorce
After you have served your spouse, count ahead 35 days on the calendar (do not count the day your spouse was served) and mark the date. On that day, if you have not received a formal response or “Answer” from your spouse, or if you receive an answer that agrees with everything in your complaint, you may proceed with the final divorce. If your spouse’s answer disagrees with any part of your request, you will need to hire a lawyer to go forward with your case.
If you are going forward without opposition from your spouse, your next step is to complete a Request for Hearingand an Affidavit of Default for Divorce. When you file these forms, you must also file a copy of your return receipt or other affidavit showing he or she was properly served (unless you have already filed it).
After completing these filings, the clerk of court will mail you a "Notice of Hearing" with your court date. After you receive this notice, you must mail a copy to your spouse, by certified mail, return receipt requested. After your spouse mails back the signed green card, you must complete an Affidavit of Service by Mailing in front of a notary public. If the envelope and card are returned in the mail unsigned, take the returned envelope to your divorce hearing.
To prepare for your hearing, you must complete a Final Order of Divorce and a Report of Divorce or Annulment. You must also have one person testify at the hearing who has personal knowledge that you and your spouse lived separate and apart for one year. On the day of your hearing, bring the above documents to court, along with your witness(es).
During the hearing, the judge will ask questions about your documents, including questions about your marriage and separation. You may use a sample script to prepare yourself. After granting your divorce, the judge will sign the Final Order of Divorce - your divorce is not final until the order is signed and filed with the Clerk of Court. The judge may also ask you to complete a Judgment in a Family Court Case.
South Carolina Code, Title 20, Chapter 3 - Divorce
South Carolina Bar - Divorce and the Law