Divorce

Nobody wants to have to call a divorce lawyer. Divorces can often be emotionally stressful and difficult to navigate on your own. In South Carolina, Family Court judges have a great deal of discretion and sometimes have to make quick decisions within a fifteen-minute hearing. Judges can decide which parent will have permanent custody of the minor children, who gets what marital property, what is and is not marital property subject to division, and many other disputed matters.

In South Carolina, parties can only get divorced for five reasons:

1. Adultery;
2. Habitual Drunkenness;
3. Physical Cruelty;
4. Abandonment; and
5. Living Separate and Apart Continuously for One Year

Adultery, Habitual Drunkenness, Physical Cruelty, and Abandonment are fault-grounds, meaning parties can get divorced in as little as three months. Marital fault is a factor that may be taken into consideration by the court regarding the division of marital property and alimony. However, without one of the fault-grounds, one party will have to move out of the marital home and the two parties will have to live separate and apart from one another continuously for one year.

Adultery

Adultery is the extramarital affair of one or both spouses. The spouse alleging adultery has the burden of proving their spouse is or was cheating. While they do not necessarily have to catch their spouse “in the act,” they do need to at least prove that there was the opportunity to cheat. For example, a spouse does not have to provide photographs or videos of their spouse kissing a paramour but can produce photographs of their spouse’s car at the paramour’s residence in the middle of the night. If it is determined that one spouse did cheat, then the cheating spouse is forever barred from receiving alimony. It is important to note that this alimony bar also applies while the divorce action is pending because there is no “legal separation” in South Carolina. Parties remain married until the divorce decree is signed by the judge.

Habitual Drunkenness or Drug Use

Habitual Drunkenness is when one spouse spends a great deal of time under the influence of either drugs or alcohol. This is usually corroborated by independent witnesses who can say they often see the spouse under the influence. Criminal charges or employment records can also be used as evidence of habitual drunkenness. 

Physical Cruelty

A spouse can file for a divorce in South Carolina based on physical abuse. The abuse must be physical, as South Carolina does not recognize “mental abuse” as a cause of action for a divorce.

Abandonment

A spouse can file for divorce in South Carolina if one spouse has completely left the marriage and has been gone for one continuous year. 

Living Separate and Apart Continuously for One Year

South Carolina does not have what is commonly referred to as a “no fault divorce.” The above listed grounds for divorce are all fault-grounds. If two parties no longer wish to be married because “it is no longer working out,” one party will have to vacate the marital home for at least one whole year before the divorce can be finalized.

Process

The first step in getting a divorce should be to meet with an attorney to have them draft a complaint and have it served on the other party. Once served, a Temporary Hearing may be scheduled. These hearings can last as little as fifteen minutes and issues such as temporary child custody, spousal support, and who will stay in the marital home can be decided by a judge. However, a temporary agreement can be reached before the hearing where both parties agree to the terms and conditions during their separation until the Final Hearing. If parties can agree on a temporary basis then the Temporary Hearing can generally be cancelled. 

Regardless of whether the divorce is based on a fault ground or based on one year’s continuous separation, parties may then engage in exchanging discovery. Alternatively, if everyone is already in agreement, the parties may petition the court for a final hearing or wait one year if necessary and then petition for a final hearing.

If parties cannot come to an agreement then they are required to go to mediation. Mediation is when a neutral third party is brought in to help both parties come to an agreement. If an agreement is still not reached after mediation then a contested Final Hearing will be scheduled. Here, both parties will be allowed to call witnesses and present evidence for a judge to decide how the marital property will be divided.

Our office handles divorce cases involving child visitation, child support, alimony, and division of marital assets and debts.