Uncontested 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 complicated too. However, in South Carolina, there is an easier approach to divorce that you may be able to use called a "simple" divorce (sometimes other states refer to it as an "uncontested" or "simplified" divorce.)

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 before you file.

What Is a No-Fault Divorce in South Carolina?

In South Carolina, you can seek a fault divorce based on one of the following four grounds:

• adultery
• desertion for one year
• physical cruelty,
• and habitual drunkenness are 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, because you will need to prove the misconduct occurred and that it led to the divorce.

Alternatively, couples can request 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. (S.C. Code Ann. § 20-3-10.)

If you and your spouse are seeking a divorce based on separation, 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, even if either spouse has been at fault in some way, those issues can't be raised in the divorce proceeding.

Requirements for a Simple Divorce in South Carolina

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 before 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 (S.C. Code Ann. § 20-3-30.)
• you are filing for a no-fault divorce using the ground that you and your spouse separated for at least one year, and haven't lived together at any point during that year
• you have no marital property or marital debt, or you have reached an agreement on how to divide the marital property and debt, and
• you have no children with your spouse, and neither spouse is pregnant, or
• you have minor children together and agree on the terms of child 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

You can find all the forms you will need for this process at the South Carolina Judicial Department website. You can also find helpful information on the divorce process, including videos and instructions on the South Carolina LawHelp.org website. If you have questions on other family law related issues, you should visit the self-help resources page of the South Carolina Judicial Department website.

File the Complaint

The first step is to file the following papers with the Clerk of Court, Family Court Division. The forms you will need to include with your paperwork includes:

• Family Court Cover Sheet
• Certificate of Exemption
• Summons for Divorce
• Complaint for Divorce
• Financial Declaration Form (do not sign this until you are in front of a notary public)
• Acceptance of Service
• Request for Hearing, and
• Final Order of Divorce

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. (S.C. Code Ann. § 20-3-60.)

You must sign some of the forms 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 the court will charge a filing 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 the court approves your motion, 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; your spouse must sign the receipt; 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) (S.C. Code Ann. § 15-9-15.)
• 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

In South Carolina, the court must wait at least 90 days from the date you file your paperwork to finalize your divorce. (S.C. Code Ann. § 20-3-80.) After you have served your spouse, count ahead 35 days on the calendar (do not count the day you served your spouse) 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 a contested divorce case.

If you and your spouse agree on all the divorce-related issues, your next step is to complete a Request for Hearing and submit it to the court. When you file these forms, you must also file a copy of your return receipt or other affidavit you properly served your spouse (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 you receive the envelope and card 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 the 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 from the South Carolina Judicial Branch website to prepare yourself. After granting your divorce, the judge will sign the Final Order of Divorce. Your divorce is not final until the judge signs the order and files it with the Clerk of Court.

The judge may also ask you to complete a Judgment in a Family Court Case, which you can find on the court's website.

Resources

To read South Carolina's divorce laws, review South Carolina Code, Title 20, Chapter 3 - Divorce