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Divorce Law Summary

CHARLESTON DIVORCE ATTORNEY JAY MCMILLIAN

HOW TO START A DIVORCE IN SOUTH CAROLINA?

A divorce, in and of itself, is technically a lawsuit. An individual starts a divorce against a spouse by the filing of a Divorce Summons and Complaint in a South Carolina Family Court. Once the Summons and Compliant asking for a Divorce is filed, that individual must also serve a copy of the Summons and Complaint on the other spouse. In other words, the other spouse must be made aware of the divorce proceedings and receive a copy of the Summons and Complaint either through certified mail with a return receipt attached, or by being served in person by a process server.

Once the other spouse has been served a copy of the Divorce Summons and Complaint, that individual has 30 days to file a response to the allegations in the Divorce Summons and Complaint and to serve a copy of that response (called an Answer) upon the person who filed the original Summons and Complaint.

There are other issues involved with initiating a Divorce such as Request for A Temporary Order, Emergency Hearings and the like (reasons why you NEED A LAWYER), however in its most basic form, this is how a Divorce action is started in a South Carolina Family Court.

WHAT ARE THE GROUNDS FOR DIVORCE IN SOUTH CAROLINA?

When starting a Divorce in South Carolina, the Summons and Complaint must state the grounds, or legal justification, for why the Divorce should be granted by the Family Court. South Carolina recognizes 5 grounds for Divorce:

  • One Year Separation: Speaks for itself, living separate and apart from your spouse for a period of one year. This period must be absolutely free of any co-habitation or any periods of reconciliation during the previous one year.
  • Desertion: The distant cousin of one-year separation. This is a ground where the spouse has abandoned the home and has expressed an intention to never return to the marital home. This is a rarely used ground for Divorce since the one-year separation ground usually covers this and is easier to prove.
  • Adultery: Why yes, to the amazement of some (sarcasm, of course), cheating on your spouse is a ground for Divorce in South Carolina. The one idea to take away from the Adultery ground is that one does not have to prove actual sexual relations existed. It can be enough to prove adultery through circumstantial evidence of opportunity and actions that suggest sexual relations.
  • Physical Cruelty: This ground for Divorce involves acts of physical violence against a spouse that threatened life and limb and make future cohabitation with the offending spouse unsafe. One idea central to physical cruelty is that it usually involves a pattern of violence, not a single act. However, there are some Family Court judge opinions on record that allow this to be used for a single act of violence if the single act is deemed severe enough to warrant an immediate termination of the marriage.
  • Habitual Drunkenness and Drug Abuse: The ground of habitual drunkenness is nothing but a big gray area that really comes down to the facts of each individual case. It does usually involve a fixed habit of getting drunk and/or getting high but it doesn't have to be continuous. However, one must not be deemed an alcoholic or an addict to be subject to Divorce on this ground. The impaired state must exist at the time of or near the time for the request for divorce. Finally, the drunkenness must be the root cause of the breakdown of the marital relationship.

WHAT ARE THE DEFENSES TO DIVORCE IN SOUTH CAROLINA?

If you are served with a Divorce Summons and Complaint, and allegations are being made concerning the grounds for Divorce listed above, what responses or defenses would you have in response to allegations that you may feel are factually incomplete or just false:

  • Recrimination: This is the most often used defense in South Carolina Divorce cases. This is basically the “everybody does it” defense. Most often found in cases where adultery has been alleged, this is a defense where the accused spouse will basically say that the accusing spouse has committed the same act. The “you cheated too” defense. It does serve a purpose, considering that adultery is an absolute bar to alimony under South Carolina law no matter which side of the Divorce suit you stand on.
  • Insanity: This defense can be used in a one-year separation divorce, since the “insane” party would not be able to understand the legal consequences of the Divorce proceeding against them. Also, used in adultery cases to show that the “insane” party could not appreciate the wrongfulness of the acts that were being committed that created the ground for Divorce.
  • Provocation: Most often used in Physical Cruelty cases. The “they had it coming” defense. This defense states that the act being complained of should be excused by the Family Court since the party making the accusation committed acts that provoked a certain response that could not be avoided and warrants being pardoned.
  • Collusion: Speaks for itself . . . a secret agreement between 2 or more parties to meet an illicit and illegal end and to defraud the Family Court.
  • Connivance: This is a twisted one for sure! This involves the Plaintiff (person seeking Divorce) consenting to acts by the other spouse that create the ground for Divorce prior to the act being committed. The most common example is consensual adultery . . . “Yes, I am OK with you sleeping with the neighbor so we can get a Divorce quicker . . .” The “soap opera” defense.
  • Condonation: This defense would be applicable to the spouse seeking Divorce if prior to filing, they expressed explicitly or impliedly that they have forgiven the conduct now being complained of in the Divorce. There must be full knowledge of the offense committed by the spouse, mutual intention to renew the relationship as a married couple, and a forgiveness of acts based upon the promise that they will not occur again.
  • Reconciliation: This is the “clean slate” defense. If a spouse has committed acts that support a ground of Divorce, this act can be forever excused and wiped away through reconciliation. If the innocent spouse does not pursue Divorce on the acts of the guilty spouse, and they both continue to live life as a married couple, with the mutual intent and agreement of being perceived as a married couple, and re-assume a full marital relationship through cohabitation and consummation (romantic relations), then all acts that would support a ground for Divorce are wiped away and a fresh start commences.

HOW LONG WILL IT TAKE TO GET A DIVORCE IN SOUTH CAROLINA?

This warrants the typical lawyer's answer but it really is the correct answer, “it depends.” A one-year separation case where the parties have been separate and apart for years will process faster than an adultery case where child custody, spousal support, and property division is being litigated.

South Carolina Law does give us two benchmarks in Family Court Litigation. First, a final divorce hearing can't be heard by the Court until 90 days have passed since the initiation of the Divorce suit. So, even at its quickest, your Divorce case will be active in front of the Family Court for at least 90 days.

Second, through administrative rules, a request for a final hearing on any Family Court matter must be delivered to the Clerk of Court within 365 days of the initiation of the matter.

Though each case is fact sensitive, at least know that, depending upon the complexity of your case, the matter will be active in front of the Family Court for a period of 3 months up to a year in most cases.

HOW MUCH WILL IT COST TO HIRE A LAWYER FOR MY DIVORCE?

Going to go back to that tried and true lawyer's answer . . . “it depends.” An uncontested divorce where a property settlement agreement is in place and there are no issues of child custody is going to be way cheaper than a fault-ground based divorce with every issue down to who gets the family dog is being fought over. I usually charge a flat fee for uncontested divorces where all issues are resolved. In contested cases, I usually bill in the more traditional style of charging an upfront retainer that will anticipate how much time I will need to prosecute your case and then bill hourly from there.

I am flexible and will work with any client to establish a payment plan or arrangements so that you are afforded the opportunity to have the legal representation that you need to navigate the Family Courts of South Carolina.

You will need an attorney to assist you in this process . . . or at some point you will wish you had an attorney, I promise that! The Family Court system is more than just “knowing the law.” There are deadlines that must be met, specific language required in court filings, relationships with court personnel and other attorneys, lots of things that go into a successful case that you can't put a price tag on. It is that simple.

Contact me and schedule your consultation today! Don't let a moment go by, get the help you deserve!

The McMillian Law Firm

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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