Filing for divorce starts with a determination of the grounds for divorce and whether you meet the residency requirements of your state. The link below is the information for South Carolina divorce law.
Many states have a "waiting period" during which you and your spouse have to live separate and apart before you can actually begin filing for what is called a "no fault" divorce. However, you can proceed with either a legal separation or a temporary hearing that will define the rights and responsibilities of the parties until such time as there is a final decree of divorce. In South Carolina, that waiting period is one year during which there can be no cohabitation, even for one night.
The local Family Court in your county will normally have jurisdiction over your divorce case. Jurisdiction is another issue that must be considered if there are children and custody is contested or there is marital property that has to be divided. If the children or property are in another state or county, then your divorce attorney will have to determine the proper jurisdiction where your filing for divorce will be necessary. If you meet the residency and grounds requirements for a divorce, then you can always file your divorce papers in your county. However, that family court may not have the power to issue an order for child custody, child support or the division or marital property.
Start Your Filing for Divorce
Your divorce attorney will start your filing for divorce by drafting a Summons and Complaint. The Complaint will include the basis to show the Family Court judge that the court has the power to hear your divorce complaint, identity of your spouse, when and when you were married, your children, the grounds for the divorce and what you are asking the judge to order in addition to granting the divorce. Typically you will ask for a determination of child custody, child support, division of the marital estate, alimony and any other issues between the parties.
The summons is attached to the divorce complaint and tells your spouse that you have filed for a divorce, in which court and how long he has to file an Answer to your filing for divorce.
Once your family law attorney has completed the summons and complaint, he or she will review it with you and have you sign an Affidavit attesting that everything in the complaint is truthful.
Then your divorce attorney will fill out a Family Law Cover Sheet. That is information that is needed by the clerk of court to properly complete your filing for divorce and enter it on the court docket. Your attorney will pay the required filing for divorce fee and submit the divorce papers to the family court clerk. The clerk will assign your divorce case a specific case number that will be required to be on all filings with the court, time stamp the papers, and return the copies to the attorney.
Once your divorce papers are filed with the family court, your attorney will serve a copy on your spouse. Normally, your attorney has 120 days to perfect service and return a certificate of service to the court or your case will be dismissed.
Service of Your Filing for Divorce on Your Spouse
SERVICE BY PUBLICATION
Your attorney will have to make a diligent effort to find your spouse and serve your divorce papers on them. If they cannot be found, then the judge will allow service by publication. The requirements for service by publication vary by court. The clerk of court will provide your attorney with the requirements for that particular court.
SERVICE BY CERTIFIED MAIL
Many states including South Carolina allow for service by certified mail. It has to be restricted delivery to spouse and only the spouse can sign. Otherwise the service is not perfected. Then the return card is filed with the court.
PERSONAL SERVICE OF PROCESS
This is the preferred method. Anyone over the age of 18 and not an interested party can personally serve the divorce papers. If there is personal service, the papers can be served on anyone of suitable age that resides at your spouse's residence. Then a certificate of service is filed with the court.
TIME TO FILE AN ANSWER
Once your spouse is served they have thirty calendar days to file an answer with the court. If they do not respond, you attorney will file a Notice of Default and your case will proceed to a hearing.
What Happens Next?
Once your spouse is served with the divorce papers, your attorney will either file for a temporary hearing or for a final divorce hearing depending on the circumstances of your case. Your attorney will advise you that it will be in your best interest to agree to a marital settlement agreement if you and your spouse can come to an agreement.
If this is an uncontested divorce, then only one spouse needs to retain an attorney. The attorney cannot give the other spouse any legal advice but often there are no real issues and one attorney can prepare the marital settlement agreement and handle all of the paperwork. However, where there are issues of child custody or alimony, it would be advisable for each spouse to at least consult with an attorney, especially before signing any agreement.
I Want to File my Divorce Online
While there are services that offer to file your divorce online, all they can do for you is to fill out standard forms. You cannot actually file your divorce papers online. That can only be done by mailing or personally delivering your completed divorce forms to the family court along with the required filing fee. The court will not accept a personal check so the divorce filing fee has to be in the form of a money order or cash. In addition, the online filing for divorce service cannot provide you with any legal advice or answer any of your legal questions. There is no substitute for legal advice from your own local South Carolina divorce attorney that knows how to properly file and schedule your divorce with the court.
Do I Really Need a Divorce Attorney?
We live in an era of specialization, and for good reason. Divorces and other family law matters are legal proceedings that are governed by specific South Carolina laws: statutes, case law and court rules. One should be represented by an attorney who is completely familiar with the law and the procedure that must be followed. There is a great need to proceed correctly as there is only one opportunity to achieve a desired result. Therefore, with contested issues to resolve, you will face possible hearings and perhaps, a divorce or child custody trial and the necessity to submit supporting law to the court. There is a need for an experienced South Carolina divorce attorney who concentrates on these types of cases and who is familiar with the courts, judges and staff of the courts.
A divorce or separation is a time when you are too emotionally invested to always think and act objectively. There are documents to be drafted that cannot merely be copied from forms. This is an area where “one size does not fit all.” Mistakes can be costly.
For a Divorce or Child Custody lawyer in Spartanburg, Pickens, Anderson or Laurens County call
L. Wayne Patterson, Attorney at Law
10 Century Dr., Suite A
Greenville, SC 29607
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