Getting divorced is stressful enough without adding worries about all the forms and legal requirements. But the process doesn't always have to be as difficult as you might imagine, and help is available. Here's what you need to know about the divorce process in South Carolina—and how to get started.
Before you start the process of filing for divorce, you need to learn a few things, including whether you meet the requirements for divorce in South Carolina.
When you file for divorce, you must state a legal reason (or "ground") for the end of your marriage. Like many states, South Carolina law allows both "fault" and "no-fault" divorce grounds. Unlike most other states, however, South Carolina doesn't allow divorcing couples to file for a no-fault divorce by simply declaring that they're no longer compatible or that their marriage is permanently broken. Instead, spouses must live "separate and apart" for a full year, without any sexual relations, before they can file for a no-fault divorce. Living in separate rooms in the same residence doesn't count for the purpose of this requirement. (Barnes v. Barnes, 280 S.E.2d 538 (S.C. Sup. Ct. 1981).)
To file for a divorce based on fault, you must claim that your spouse was guilty of adultery, desertion (for a year), physical abuse, or habitual substance abuse. And you'll need to evidence to back up that claim, because your spouse will probably contest it. That's why fault-based divorces usually take longer, cost more, and require lawyers. You and your spouse might be tempted to agree to one of the fault-based grounds just to get through the divorce without the time (and expense) of a year-long separation in different homes. But beware: If that appears to be what you've done, the judge won't grant your divorce. (S.C. Code §§ 20-30-10, 20-30-20 (2022).)
In order to file for divorce in South Carolina, you must meet one of the following residency requirements:
(S.C. Code §20-3-30 (2022).)
Although you may file for divorce in the state if you and your spouse have lived there as little as three months, you should know that your divorce decree may not address any issues related to child custody unless the child has lived with a parent in South Carolina for at least six months (or since birth if the child is younger than that) before you filed for divorce. There are a few exceptions to the six-month rule, but they can be difficult to prove. So you should talk to a lawyer if you aren't sure whether you meet this requirement. (S.C. Code §§ 63-15-302, 63-15-330 (2022).)
Even when you've been separated long enough to qualify for a no-fault divorce in South Carolina, the legal process of ending your marriage will take even longer—and will be more expensive—unless you and your spouse qualify to file for an uncontested divorce (also known as a "simple divorce" in South Carolina). In order to use the self-help forms for simple divorce (more on that below), you and your spouse must:
If your divorce will be truly uncontested, you should also have an agreement with your spouse about whether either of you will pay alimony and, if so, how much and for how long.
You might be able to handle your own divorce without a lawyer's help if you have a written marital settlement agreement that covers the issues in ending your marriage, including property division, child-related issues, and alimony. The do-it-yourself route will be the cheapest option, but it will call for some time and attention to detail, to make sure that you have the right forms, fill them out correctly, and follow the rules for filing the paperwork and taking the next steps.
There are also variations on a "true" DIY divorce. For example:
Without an agreement, you'll need to file for a traditional, contested divorce. Because that will almost certainly require hiring a lawyer—who will take care of the forms, filing, and all other legal matters during the divorce—the information outlined below is mainly focused on the filing process for uncontested divorce.
As with most legal matters, filing for divorce in South Carolina requires a lot of forms. You can download the forms for simple divorce, along with instructions, from the South Carolina Judicial Branch. There are separate packets of forms for the "plaintiff" (the spouse who will start the divorce process) and the "defendant" (the other spouse). You can also use the self-help divorce forms tool provided by South Carolina Legal Services, or you can use an online divorce service to provide and complete the forms for you.
If you're the plaintiff, the forms you'll need to complete include:
After filling out and signing all the forms, make sure you have at least three copies. The court will keep one, you'll keep one for your records, and your spouse will need a copy.
Your next step is to file the divorce papers with the court clerk in the Family Court Division. Here's how to know which county in which you should file:
(S.C. Code § 20-3-60 (2022).)
The court clerk will charge a fee to file the papers (currently $150). If you can't afford to pay, you may file a Motion and Affidavit to Proceed in Forma Pauperis. Then, if the court approves your request, you won't have to pay filing fees or the sheriff's fees for serving the divorce papers (more on that below).
After filing the forms with the court, you'll need to "serve" your spouse with a copy of the complaint and other forms. South Carolina allows different ways to serve the divorce papers:
Whichever method you use, you (or the process server) will have to file proof of service with the court. (S.C. Code §§ 15-19-710, 20-30-70; S.C. Rules Civ. Proc., rules 4, 5(b)(1) (2022).)
Your next step in the divorce process will depend on whether your spouse files an answer to the complaint within 30 days after being served with the divorce papers.
Once you receive notice of the hearing date, you must mail a copy to your spouse by certified mail, return receipt requested. (S.C. Rules Civ. Proc., rule 12(a); S.C. Rules Fam. Ct., rule 17 (2022).)
If you're the plaintiff, you must appear at the divorce hearing. Your spouse may choose to attend or not.
Before the hearing, complete a Final Order of Divorce and a Report of Divorce or Annulment. You should make sure you have proof that you mailed notice of the hearing to your spouse: either a completed, signed and notarized Affidavit of Service by Mailing (Notice of Hearing), or the unsigned and returned envelope and card. You'll need to bring these documents, along with your complaint and other forms, with you to the hearing. Also, you'll need to ask someone who has personal knowledge of your year-long separation from your spouse to come with you to the hearing and testify about that knowledge. You may use the sample scripts (on the court's forms page) to prepare yourself for the hearing.
At the hearing, the judge will ask you some questions, hear the testimony from your witness, and review your paperwork. The judge might ask you to complete the Judgment in a Family Court Case form. If everything appears to be in order, the judge will sign that form and the Final Order of Divorce. Make certain that both forms are filed with the court clerk, because your divorce won't be final until then.
If your spouse files an answer to the divorce complaint that indicates disagreement with any part of the requests in your complaint, your case will proceed as a contested divorce. You'll probably need to go through discovery—the legal process for gathering evidence—as well as various court hearings. Unless you and your spouse manage to reach a complete settlement at some point in the process (usually with the help of your lawyers), you will go to trial and have a judge make decisions on all of the unresolved issues.