The Divorce Process
The divorce process starts and ends in the family court system. South Carolina’s family courts handle all marital litigation, including the initial divorce decree and related issues of alimony, support and separate maintenance awards, child custody, child visitation, and division of marital property.
In order to obtain a divorce decree in South Carolina, you or your spouse must meet one of the “residency requirements” as provided by statute. If both you and your spouse are South Carolina residents, then you must show that you both have lived in the state for a minimum of three (3) months prior to filing for divorce. However, if only one of you is a South Carolina resident, either you or your spouse must have lived in the state for at least one year prior to the commencement of the divorce action. South Carolina will not recognize a divorce granted by another state where both spouses were “domiciled” in South Carolina at the time of divorce (“domiciled” means where a person resides and intends to remain).
How the Divorce Process Begins
The formal divorce process begins when the party seeking a divorce (the plaintiff) hires an attorney to draft a complaint, stating the ground(s) for divorce and relief requested – for example, why the spouse wants the divorce, how he or she wants custody to be determined, etc. The attorney files the complaint with the family court and has someone (typically a process server or sheriff) deliver the complaint and summons (see http://www.judicial.state.sc.us/forms/pdf/SCCA400.01SRL-DIV.pdf) to the other spouse (the defendant), who has thirty (30) days to respond and to request any other relief (“counterclaim”). If the defendant spouse does file a counterclaim, the plaintiff spouse then has another thirty (30) days to respond. You should expect this initial process to take up to three months.
Once the complaint if filed, South Carolina has two important “waiting periods” set by statute. For the fault-based grounds of adultery, physical cruelty, and habitual drunkenness, there is a statutory sixty (60) day waiting period between service of process (when the summons and complaint were served) and trial. After trial, the court will issue a divorce decree at the final hearing, which can take place no sooner than ninety (90) days after the original service of process date. Cases alleging desertion or separation for one year may have the final divorce decree entered immediately after the defendant has filed his or her response to the complaint. S.C. Code § 20-3-80. (The theory behind this is the parties have already had a 365-day “waiting period” so no further time restrictions are necessary.)
Divorce Process: Uncontested Cases
With the help of their attorneys, many spouses are able to work together and assent to separation, divorce, child custody, child support, and property agreements so that minimal judicial intervention is necessary. When such agreements are reached, the parties’ attorneys present them to the court for judicial approval at an abbreviated hearing; there is no need to have a trial because the parties are in agreement on all the pertinent issues. Because abbreviated hearings are shorter in length, the court can schedule them closer to the time of filing for divorce. Uncontested divorces are resolved much faster than contested divorces and can save parties considerable time, money, and heartache.
Divorce Process: Contested Cases
If you and your spouse cannot come to an agreement on your own, your attorney(s) will advise you on a course of action. Many disputes concerning divorce, child custody and visitation, property division, and alimony are ultimately litigated at trial, where each spouse must be independently represented.
Divorce Process: Discovery
There are several things you need to know about litigating your divorce and other related issues. First, the court will allow each party to obtain evidence from the other side in a process called “discovery.” As part of discovery, parties can ask each other questions and request answers, request certain documents be produced, and require the other side to participate in depositions.
The issues often addressed during discovery include each spouse’s version of events during the marriage and what led to the divorce. Next, information about assets and liabilities and whether the other party has engaged in any misconduct (adultery, habitual drunkenness, physical abuse, etc.). Because each party is allowed thirty (30) days to respond to a discovery request (longer if the court grants more time), the discovery process could take months to complete. If you have a complex case, an uncooperative spouse, or an aggressive attorney, this process could take even longer.
Divorce Process: Mandatory Mediation
Second, in every contested divorce action, the court has the power to order the parties to participate in mediation. Mediation involves the parties meeting with a neutral third-party mediator to address issues of property division, child custody, etc. The mediator must remain impartial and may not advocate for either party. Furthermore, any agreement reached in mediation must be that of the parties themselves and not of the mediator. Any agreements reached, if any, must be presented to the court and formalized in a final order.
Divorce Process: Preliminary or Emergency Hearing
Once the divorce proceeding is in motion, parties often have issues that need to be addressed while they are awaiting trial and the final decree. The court will hold a “temporary hearing” to determine if one spouse is entitled to “separate support and maintenance” (financial assistance), who has physical and legal custody of the children, which spouse can remain in the marital home, etc. In deciding these issues, the court’s foremost goal is to maintain stability and peaceful relations in the family.
Temporary hearings are very brief and designed expeditiously. The spouse who requests a temporary hearing must give the other spouse five (5) days’ notice. Each party presents an affidavit to the court detailing their finances and has a few short minutes to explain themselves to the judge. The judge will either make a ruling immediately, or may take a few days to make a decision, issuing a “temporary order” which will be binding on the parties until the final decree is given after trial. For a look at what a temporary hearing information form looks like, visit http://www.judicial.state.sc.us/forms/pdf/SCCA459.pdf.
Divorce Process: Trial
If all attempts to resolve either independently or through mediation fail, the last stop in the process is to go to trial. Sometimes, a trial cannot be avoided, and your lawyer should be willing to “go the distance” if necessary and in your best interests. However, this aspect will be the most emotionally and financially demanding. This is why we encourage peaceable resolution whenever it can be had. Trials can take hours or days, depending on the complexity of your case and whether your spouse and his or her attorney are cooperative or hostile. Some lawyers try to streamline their case so as to expedite trial. Others contest every issue no matter how small or seemingly unimportant. These are the family law attorneys to avoid. There is enough acrimony without adding unnecessary entanglements.
At trial, both you and your spouse will be required to present your respective cases. Your lawyer will put up evidence and call lay and potentially expert witnesses. Evidence such as photos, emails, medical records, bank statements, and anything else produced during discovery can potentially be used at trial. Your attorney will decide trial strategy (i.e., what witnesses to call and how to question them, what evidence to present, etc.) and will know what evidence and testimony the court will entertain according to the South Carolina law.
Divorce Process: More privacy. No jury.
Family court trials are much more private than a typical civil or criminal case. For one, there is no jury; the judge will make all decisions of lDaw and fact. Second, members of the public and the media have limited access, meaning the only people you can expect to see in the courtroom are the parties, the parties’ lawyers, the judge, the court reporter, the bailiffs, the occasional law student, and sometimes the witnesses.
Divorce Process: Children protected from testifying
Generally, children will be “sequestered,” or kept out of the courtroom, during the trial unless and until their testimony is needed. Typically, the court will spare children from viewing and participating in the trial unless their testimony is absolutely necessary. In many cases, the judge will meet with and interview children privately in his or her chambers. Other witnesses can also be sequestered if your lawyer requests and the court allows.