Divorce 

 

Agreements

Much of the headaches accompanying divorce can be avoided, if the parties come to a mutual agreement. Each person’s lawyer can work together to develop a reasonable and amicable agreement. Once the parties have reached an agreement, their lawyers will draft a written version and present it to the family court judge. If the judge finds the agreement fair, reasonable and voluntary, then the agreement will be incorporated into a court order, binding both parties to the terms therein.

 

Procedure

The divorce process begins by the service of a summons and complaint. The complaint sets forth the legal justification(s) for seeking a divorce, and the summons demands the other party to answer within thirty (30) days. The other party will then file a written answer, which may set forth a request for alternative/additional relief, as well as a counterclaim against the party who filed the complaint.

 

If the parties reach an agreement, the family court will have a brief hearing to finalize the divorce. Otherwise, the family court may order the parties to attend mediation or parenting classes to resolve their issues. The family court is most likely to make the parties mediate their differences with issues of child custody and visitation. With issues involving children, the family court’s paramount concern is the best interest of the child. If the parties still cannot resolve their difference through mediation, they may proceed to trial where they will each present evidence. In South Carolina, the parties must wait two months after service of the summons and complaint before going to trial and three months before a divorce can be finalized.

 

Separation

South Carolina does not recognize legal separation. Therefore, while you are separated but before a divorce is granted, you and your spouse remain legally married.

However, you may file an action for “separate maintenance and support” in family court. An action for separate maintenance and support allows the court to formally recognize that you and your spouse are living separate and apart. Filing an action for separate maintenance and support is a good way to start the process of proving South Carolina’s no-fault ground for divorce – living separate and apart continuously for one year.

 

Additionally, the court will temporarily determine issues of alimony, child support and custody, visitation, and perhaps equitable distribution of marital property. Those determinations may be adjusted prior to the divorce being granted, or if the parties have no disagreements, the family court judge may incorporate the separate maintenance and support decisions into the final divorce decree.