Divorce in South Carolina: Answers to Commonly Asked Questions

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I have practiced law for over 20 years, and have spent a great deal of my time representing clients in family court.  Below are some answers to frequently asked questions about divorce and family court. This information is not intended to give you specific advice about your specific situation.  Rather, it is intended to give you some general information about divorce and family court to assist you in determining whether you need to consult an attorney to obtain more specific advice about your particular situation.  You should also note that the information provided below pertains to divorces in the state of South Carolina.  If your particular situation would involve in going to court in another state, the information below may not apply to you.

How Long Does it Take to Get a Divorce?

The time it takes to obtain a divorce depends on whether you have grounds for a divorce, and whether your case is contested or uncontested.  The grounds for divorce in South Carolina are adultery, habitual drunkenness or drug use, physical cruelty, and being continuously separated for more than one year.  The first three grounds mentioned above are often called “fault grounds”.  If you do not have one of the three fault grounds, you must wait until you have been separated for one year before you can file divorce.  A further explanation of what it means to be separated for one year appears below.  When I go over the four grounds of divorce with clients, I am often asked if emotional or verbal cruelty is a ground.  It is not.

If you have grounds for divorce, the time it takes to obtain the divorce depends on what the grounds are, and whether the case is contested.  If you have one of the "fault grounds", and have not been separated for more than one year, you must wait 90 days for your divorce to become final after you file your case.  However, if you have been separated for more than one year, regardless of whether you are seeking divorce on fault grounds or on continuous separation for more than one year there is no waiting period for scheduling a final hearing.  Usually, even if the case is uncontested, it takes at least 45 days for the divorce to be final although I have obtained divorces in a shorter period of time.

If your case is contested, it can take significantly longer for the issues to be resolved and the divorce to be finalized.  This is because in every county, the court schedules numerous uncontested hearings, which only takes 15 minutes, each week, but can only schedule a small number of contested trials, which can last anywhere from one hour to four days depending on the complexity of the case.  In many counties in South Carolina, it takes over one year for the courts to schedule an all day contested hearing from the date you filed the case.  Sometimes it takes as many as two years.  A case is uncontested if you and your spouse agree on all issues, including child custody, visitation, division of property, child support, alimony or family support, and payment of attorney’s fees.  Many cases that start out contested are settled before a contested final hearing is scheduled.  Once all of the issues are resolved, you can usually have an uncontested final hearing scheduled within 30 to 45 days after you have reached an agreement.

Must I be Legally Separated for One Year to Qualify for a Divorce?

There is no requirement that you be "legally separated" to have grounds for divorce, and in fact, there really is no such thing as being "legally separated".  There is a type of case called "Separate Maintenance" which people often file when they do not have grounds for a divorce.  This is also sometimes called a "legal separation".  This type of action is more fully described below.  If you and your spouse are living separate and apart, once you have lived separate and apart for more than one year, you do have grounds for a divorce.

What Can I Do if I Have No Grounds For a Divorce?

Where you have no grounds for divorce, all of the issues that the court resolves in a divorce case including child custody, visitation, property and debt division, child support, family support, alimony, and attorney’s fees can be decided in an action called an action for Separate Maintenance and Support.  This is sometimes called an action for legal separation.  Even if you have no grounds for divorce, you can bring an action for separate maintenance and support and have the court rule on all the issues listed above, and decide those issues with finality.  Once those issues have been decided by the court with finality, whether by agreement of the parties, or as the result of a contested trial, those issues are Res Judicata, a legal term meaning that the issues are decided with finality.  Those issues then can not be relitigated.  The only issue left would be the divorce itself, which either party could obtain after the parties have been separated for one year.  On an Order of Separate Maintenance and Support offers many advantages for people who want to be divorce, but have no grounds.  It allows you to settle your financial issues, and child issues, without having to wait a year before you can even begin the action.  Also, after an Order of Separate Maintenance and Support is issued, adultery is no longer a ground for divorce.

How Can I get the Court to Award Custody of the Children, or have My Spouse Pay Certain Bills Immediately?

Although divorce or Separate Maintenance cases can take a long time to be finalized, as described above, one can obtain immediate relief by requesting emergency relief or temporary relief. Often, when a case if filed, the attorney will file a motion for temporary relief and the court will schedule a hearing to determine whether temporary relief is appropriate.  The court has authority to issue an order dealing with issues of child custody, payment of debts, child support, or family support while the case is pending.  The court will issue a temporary order, which will grant one party custody of the children, deal with the issues of visitation, and issues of payments of bills, or family support while the case is pending.  Once a final hearing is scheduled and final order is issued, the final order then governs the conduct of the parties.  A temporary order can often be obtained within one month to forty-five days after the case is filed.  If you can show the court that an emergency exist, the court may schedule and emergency hearing within 1 or 2 days after the case is filed.  However, this is somewhat rear and usually involves cases where children are placed in physical danger.

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