What are the divorce laws in SC?
If you are considering divorce or separation in SC, you are probably feeling overwhelmed, frustrated, and you are wondering how to make this happen the right way without risking your financial security or your children’s wellbeing.
In this article, we will discuss the basics of SC’s divorce laws, including:
- The different types of divorce that are available in SC,
- Annulments,
- Dating while separated,
- Separate maintenance and support vs. divorce,
- Alimony, and
- Temporary, expedited, and emergency hearings in SC’s family court.
What You Need to Know About Divorce in South Carolina
There isn’t just one way to get divorced in SC. The first major distinction is between the two types – no-fault and fault divorce. Essentially, it asks the question of whether one spouse is accusing the other of causing the breakdown of the marriage. There are several “fault grounds” that can apply to fault-based divorce including adultery, physical cruelty, habitual drunkenness, and desertion. Keep reading to learn the specifics.
No-Fault vs. Fault Divorce
There are two types of divorce available under SC’s divorce laws: fault-based and no-fault.
No-Fault Divorces
A no-fault divorce is a divorce based on a one-year continuous separation. If you and your spouse have lived separate and apart for at least one year without reconciling, you can get a divorce in SC without alleging one of the fault-based grounds.
Note that no-fault divorce is not the same thing as an “uncontested” divorce – even a no-fault divorce is “contested” if issues like child custody, child support, alimony, or division of property are not agreed upon.
Fault-Based Divorce
There are also four fault-based grounds for divorce under SC’s divorce laws:
- Adultery – which is also a complete bar to alimony if proven,
- Physical cruelty – physical abuse, physical violence, or the threat of physical violence,
- Habitual drunkenness – substance abuse that happens regularly and that contributed to the breakdown of your marriage, or
- Desertion – where your spouse abandoned you for at least one year and provided no support during that time.
Annulment
An annulment is not a type of divorce – it is, however, an alternative to divorce in some cases.
An annulment is a declaration from the court that you were never married in the first place because your purported marriage was not valid.
Some examples include:
- Duress – your will was overborne, and you were forced into a marriage unwillingly,
- Fraud – in rare cases, fraudulent representations as to “something essential to the marriage relation” can be grounds for an annulment,
- Bigamy – in most cases, a marriage is void when either party has another spouse who is still living,
- Incapacitation – a person who has been adjudicated incompetent cannot enter a marriage contract,
- Underaged marriages – children under the age of 16 in SC cannot enter a marriage contract,
- Incest – a marriage to a close relative is void under SC law, and
- Failure to consummate the marriage – this does not mean a failure to have sexual relations; rather, it is a failure to cohabitate. If the parties have never lived together, even for a single night, the marriage is subject to annulment.
Separate Maintenance and Support vs. Divorce
If you have filed an action for divorce, you can also request that the family court order separate maintenance and support at a temporary hearing in your case.
On the other hand, if you are not filing for divorce but you are separating from your spouse, you can file an action asking the court for separate maintenance and support instead of a divorce action.
Whether you are divorcing or just separating, the family court has the authority to temporarily resolve issues like:
- Child custody and visitation,
- Child support,
- Alimony,
- Division of marital property, and
- Allocation of marital debts and assets.
Dating While Separated
Can you date while you are separated?
Divorce laws in SC say that you can date while you are separated, but only if the court has signed a permanent order of separate support and maintenance or if the court has signed a permanent order approving your settlement agreement with your former spouse…
If you decide to date while you are separated, you should consult with your divorce lawyer and ensure that you are following SC’s divorce laws.
Why?
Because dating = adultery = marital misconduct, and marital misconduct can affect alimony, child custody, and the division of marital assets.
Adultery (which could include dating while separated) is a complete bar to alimony in SC.
Divorce Laws in SC: Alimony
The family court may award alimony when it is appropriate to continue the standard of living you enjoyed while married or for other reasons like allowing you to continue your education or job training to maximize your earning potential.
There are five types of alimony, including:
- Periodic alimony,
- Lump-sum alimony,
- Rehabilitative alimony,
- Reimbursement alimony, and
- Separate support and maintenance.
Temporary, Expedited, and Emergency Hearings
There are many types of hearings in SC’s family court in divorce proceedings, including various motion hearings and your final divorce hearing.
Three important types of hearings that often cause confusion are temporary, expedited, and emergency hearings:
- Temporary hearings: can be scheduled early in your divorce case to temporarily resolve issues that cannot wait for the final hearing, like child custody, child support, alimony, or the division of property (and who stays in the family home),
- Expedited hearings: allow you to “move to the front of the line” to resolve procedural issues that arise before another type of hearing, for example when you need a continuance, you are challenging jurisdiction (and therefore should not be required to pay attorney fees to prepare for the upcoming hearing), or you need additional information or discovery to effectively prepare for the upcoming hearing, and
- Emergency hearings: allow parties to get a hearing within 24 hours if there is a “true emergency” like domestic abuse, danger to a child, or a spouse who is liquidating or concealing assets from the court.
Questions About Divorce Laws in SC?
If you are considering separation or divorce in SC and need legal advice, contact the SC divorce attorneys at Templeton, Mims & Ward at (843) 891-6100 or by sending us an email through our website to set up a consultation and find out how we can help.