Do I Have to File Divorce Paperwork Before Separating in South Carolina?

By Valerie Stevens

In South Carolina, you cannot file divorce papers before separating from your spouse except in rare cases when you are still living together but filing on the grounds of physical cruelty, habitual drunkenness or adultery. To file for divorce on the “no-fault” basis of one year of continuous separation, you and your spouse must live in separate residences for a full year. However, you can file for an order of separate support and maintenance as soon as you are living apart from each other.

In South Carolina, you cannot file divorce papers before separating from your spouse except in rare cases when you are still living together but filing on the grounds of physical cruelty, habitual drunkenness or adultery. To file for divorce on the “no-fault” basis of one year of continuous separation, you and your spouse must live in separate residences for a full year. However, you can file for an order of separate support and maintenance as soon as you are living apart from each other.

Legal Grounds

South Carolina law is strict about the requirement that the husband and wife must be continuously separated for one full year before filing. If the couple reunites sexually for even one night, it is up to the judge to decide whether they still qualify for a divorce on the grounds of one-year separation. According to South Carolina legal expert Roy T. Stuckey, some judges will allow the divorce in this case, whereas others will rule that the one-year period must start over because of the reconciliation.

Divorce is never easy, but we can help. Learn More

Divorce

At a final hearing for divorce on the grounds of one-year continuous separation, the person who files the divorce papers, the plaintiff, will have to present evidence that he has been physically separated from his spouse without reconciliation for one year. The court will accept the sworn testimony of the plaintiff and one witness. The witness must testify that he knows the plaintiff, knows he was separated from his wife and would know if they reconciled.

Separation

Unlike many states, there is no status of "legal separation" in South Carolina. Nevertheless, a couple can file for an order of separate support and maintenance, which establishes the rules the couple will live by during their separation. The husband or wife can file documents asking the court to rule on the issues of child custody and financial support. However, a final order in this case will deal with separate maintenance and support only. The separated couple would still have to file divorce papers after one year of separation.

Agreements

Many couples who seek an order of separate maintenance and support reach an agreement before filing the court documents. Usually one or both of the spouses will hire a lawyer to help them come to a compromise on most of the custody and support issues. Their agreement will be put into writing and filed with their separation papers, which ask the judge to approve their agreement.

Divorce is never easy, but we can help. Learn More
How to Become Legally Separated From a Spouse

References

Related articles

Does it Matter Who Files for Divorce First in California?

The court usually doesn't care which spouse files for divorce first, particularly in California. This is a pure no-fault state, and you can only file on grounds of irreconcilable differences, or allege that your spouse is incurably insane. Because marital fault isn't an issue, both spouses have equal legal footing, regardless of who instigates the proceedings. Filing first might lend a few practical advantages, however, depending on your concerns.

Arkansas Laws for Separation

Marital separation can be particularly complicated in Arkansas because the state recognizes two types of marriages and three kinds of legal separation. Sorting through all the laws and rules pertaining to each can be daunting, but the method of separation you choose comes down to a few basics: your personal preferences, your ability to negotiate and how you got married.

What Is a Pending Divorce?

A divorce goes through many stages, starting from the first serious issues arising between a couple and terminating in the final divorce decree issued by the court. A pending divorce generally refers to the intermediate stage after the divorce papers have been filed and before the court has issued judgment.

Get Divorced Online

Related articles

Illinois Divorce on the Grounds of Abandonment

Although Illinois law no longer punishes spouses for abandonment, the state does allow divorce on the grounds of ...

What Happens If Divorce Papers Go Unsigned?

During the divorce process, the court and individual spouses’ attorneys ask both parties to sign agreements, ...

Divorce Options in VA

Depending on the grounds for divorce, a Virginia couple may seek a divorce from the bond of matrimony, a divorce from ...

Are Legal Separation Papers Necessary in North Carolina?

In most states, spouses must address the terms of their divorce at the same time they end their marriage, but North ...

Browse by category
Ready to Begin? GET STARTED