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Self-Help Frequently Asked Questions

Warning:

You are strongly encouraged to seek the advice of an attorney in any legal matter. If you move forward without an attorney, it may negatively affect your legal rights. If you have questions about your legal rights or the law that affects your case, please talk with an attorney.

 

Disclaimer:

The general information provided in these FAQs is not legal advice, cannot be cited as legal authority, and cannot replace the advice of an attorney licensed in South Carolina. The information in this FAQ is accurate as of the date of publication. If you decide to bring a lawsuit in a South Carolina court without an attorney, you are responsible for researching the law on your own. Please note that the presiding judge in each case decides what law applies in that case.

  • Do I need an attorney to file for divorce?
    No, you do not need an attorney to file for divorce, but you are strongly encouraged to seek the advice of an attorney.
    If you are seeking a divorce based on a one (1) year continuous separation from your spouse, you may file without the help of an attorney. You may use the court approved divorce packet that is available online at no cost to you, or you may buy the forms from your local Clerk of Court for a small fee.
    You can also complete the divorce packet online on S.C. Legal Services' website www.lawhelp.org/sc. On this website, an interactive program provides you with step-by-step guidance on how to complete your divorce paperwork. This program is free.
  • What are the grounds for divorce in South Carolina?
    In South Carolina, there are 5 grounds for divorce:While there are five grounds for divorce in South Carolina, you can only use the court approved packet for living separate and apart without cohabitation for a period of one year.
    For more information, see S.C. Code Ann. § 20-3-10.
    1. Adultery
    2. Physical Cruelty
    3. Habitual Drunkenness
    4. Desertion for a Period of One Year; and
    5. Living separate and apart without cohabitation for a period of one year.

 

  • What does living seperate and apart mean?
    Separate and apart means that you and your spouse are no longer living in a single household under one roof. If you stay under the same roof with your spouse for even one night, the judge may determine that you have not been separated for the required year.
    NOTE: You and your spouse cannot stay in separate rooms in the same house and count that time towards the one (1) year separation divorce.

 

  • What does cohabitation mean?
    Cohabitation is living together in the same house as husband and wife in a physically intimate relationship.
    For more information, see S.C. Code Ann. §§ 20-3-130 and 20-3-150.

 

  • What is an annulment?
    A legal annulment is different than a religious annulment. A legal annulment is a legal procedure that declares a marriage null and void. Unlike a divorce, an annulled marriage is considered invalid from the beginning, making it as if the marriage never took place.
    Annulment is a complicated process and you are strongly encouraged to seek the advice of an attorney.
    NOTE: You cannot use the court approved divorce packet if you are seeking an annulment.

 

  • How can a marriage be annulled?
    A marriage can be annulled when there is a legal reason that makes the marriage invalid. Some reasons for annulment include:

     For more information on cohabitation, see S.C. Code Ann. § 20-1-530

  1. Lack of intimate relationship
    If two parties were married but never had an intimate relationship, they may be able to get their marriage annulled.
    Some factors a court may consider when determining whether the parties had an intimate relationship are whether the parties:
    • Lived together;
    • Shared the same bed; and
    • Engaged in a sexual relationship.
  2. Duress
    A marriage will be annulled if one of the parties entered into it under duress. Duress occurs when a person enters a marriage as a result of violence, threat, or coercion.
  3. Fraud
    Fraud is the hardest ground to prove to get an annulment. Fraud is more than a simple lie. In order to annul a marriage based on fraud, the fraud must involve:

 

  • Something essential to the marriage; or
  • Something that makes the performance of duties and obligations of the marriage impossible; or
  • Something dangerous to the health or life of the spouse.

 

 

  • What is common law marriage?
    A common law marriage is a marriage between a man and a woman even though no marriage ceremony was performed and no marriage license was issued. It carries the same rights and duties as a legal marriage.
    NOTE: The court approved packet does not apply to a common law marriage. If you think you are common law married, you should seek the advice of an attorney.
  • What factors will the judge consider to determine if you have a common law marriage?
    The judge may consider whether the couple:
    • Held themselves out to the public as husband and wife; and
    • Had sex and lived together.

       Some examples of when a man and woman may hold themselves out to the public as husband and wife are if they:

  • File joint tax returns;
  • Have joint bank accounts;
  • Share the same last name;
  • Wear wedding rings; and
  • Receive mail at the same address.

      While this list includes some of the things the judge may consider when trying to determine if a couple is common law married, the judge will consider the           unique circumstances of each couple when making a decision.

  • How long do we have to be together to be considered common law married?
    There is no specific amount of time.
     
  • How do I get a divorce if I am common law married?
    Before a divorce may be granted, the family court judge must find the common law marriage valid. This process is complicated and you are strongly encouraged to seek the advice of an attorney.
    If you do not have a marriage certificate but you believe that you are common law married, then the court approved divorce packet will not work for you.

 

  • Can I get a Common Law Divorce?
    No. Once a judge determines that a man and a woman are common law married, they are legally married. If the parties wish to be divorced, they must file for divorce in court.

 

  • Are there any court approved resources to help me file for divorce in South Carolina?
    Yes. If you are seeking a divorce based on a one (1) year continuous separation from your spouse, you may file without the help of an attorney. You may use the court approved divorce packet that is available online at no cost to you, or you may buy the forms from your local Clerk of Court for a small fee.
    You can also complete the divorce packet online on S.C. Legal Services' website www.lawhelp.org/sc. On this website, an interactive program provides you with step-by-step guidance on how to complete your divorce paperwork. This program is free.
  • Where can I get the divorce forms that can be used in South Carolina courts?
    To ensure that the forms will meet South Carolina’s requirements, go to the South Carolina Judicial Department’s website, the Clerk of Court’s office, the S.C. Bar’s website, or S.C. Legal Services’ website to get the correct forms.
    South Carolina’s divorce forms are free and available online. If you get your forms from the Clerk of Court’s office, you may be charged a copying fee.

 

  • What are the requirements to use the court approved Self-Represented Litigant divorce packet?
    You can use the court approved divorce packet if:
  1. You and your spouse are officially married (you have a marriage certificate) and not common law married;
  2. You and your spouse have been separated for one (1) continuous year without cohabitation;
  3. You are not asking for alimony;
  4. You or your spouse are not in a mental institution;
  5. You or your spouse have not been found incompetent by a judge; and
  6. Your spouse is not currently deployed.
  • What are the requirements to use S.C. Legal Services’ interactive program?
    S.C. Legal Services offers an interactive program for divorce on their website, www.lawhelp.org/sc. This program provides you with step-by-step guidance on how to complete your divorce paperwork. This program is free.
    There are additional requirements to use S.C. Legal Services’ program.
    You can use S.C. Legal Services’ interactive program if:
    1. You and your spouse are officially married (you have a marriage certificate) and not common law married;
    2. You and your spouse have been separated for one (1) continuous year without cohabitation;
    3. You are not asking for alimony;
    4. You or your spouse are not in a mental institution;
    5. You or your spouse have not been found incompetent by a judge;
    6. Your spouse is not currently deployed;
    7. You and your spouse have no property to divide;
    8. You and your spouse have no debt to divide; and
    9. You and your spouse have no minor children.
  • Can I file for a divorce in South Carolina?
    You can file for divorce in South Carolina if either you or your spouse have lived in South Carolina for a certain period of time:
  1. You have lived in South Carolina for at least one (1) year prior to filing for divorce; or
  2. You are a resident of another state but your spouse has lived in South Carolina for at least one (1) year prior to filing for divorce; or
  3. You and your spouse both live in South Carolina and you have lived in South Carolina for at least three (3) months prior to filing for divorce.
  • Which county do I file for divorce in?
    If you can file for divorce in South Carolina, you should file for divorce in:
    • The county where your spouse lives at the time of filing; or
    • The county where you and your spouse last shared a residence; or
    • The county where you live, if your spouse is not a resident of the state of South Carolina.
    • NOTE: If you are not a resident of South Carolina, you must file for divorce in the county where your spouse lives.
  • What if my spouse does not live in South Carolina?
    You can still file your divorce in South Carolina as long as you live here and have lived here for more than one (1) year prior to the date that you file your paperwork.
  • What if I just moved to South Carolina, can I still file a divorce here?
    Only if both you and your spouse have lived in South Carolina for more than three (3) months.

 

  • What if I do not know where my spouse lives?
    You are strongly encouraged to seek the advice of an attorney because you have to serve your spouse with divorce papers. If you do not know where your spouse lives, you have to serve him or her by publication. This process is complicated and expensive.
    The South Carolina Code provides information about how to complete service of process when you do not know where someone lives. This section is called “Service By Publication Or Out Of State,” and it starts at S.C. Code Ann. § 15-9-710.
    After you have tried and been unable to serve someone by U.S. Mail, private process server, and by the County Sheriff’s Department, you may prepare and file a “Petition for Order by Publication” with the Court.
    When you file this Petition, you are asking the Court to allow you to put a notice in the newspaper that will alert the person who you are trying to sue that you have tried to serve papers on them by all three of these methods:
    1. United States Certified Mail Restricted Delivery; and
    2. Personal delivery by a private process server to the last known address; and
    3. Personal delivery by the County Sheriff Department in the county where the person lived last.

       If the Court agrees that you have done a good job of attempting service, also known as “due diligence,” then the Court will sign an “Order for Service by Publication.” This Order gives you permission to announce the suit in a specific newspaper. This is known as “Service by Publication.”

  • How soon can I file for divorce?
    • As soon as you and your spouse have lived separate and apart for one (1) year; and
    • You have completed the forms; and
    • You have two (2) copies of the forms; and
    • You have $150 to pay the filling fee.
  • What if I cannot afford to pay the $150.00 filing fee?
    If you cannot afford to pay the initial $150 filing fee, you may file a motion called the “Motion and Affidavit to Proceed In Forma Pauperis” asking the judge to waive the filing fees. You must file this motion along with the Complaint you are trying to file.
    The “Motion and Affidavit to Proceed In Forma Pauperis” form is SCCA405F.
    You must have your “Motion and Affidavit to Proceed In Forma Pauperis” notarized. When you sign this motion in front of the notary, you are swearing under oath that you cannot pay the fees.
    The judge may or may not grant your motion.
    • If the judge grants your motion, then you do not have to pay filing fees, but you are still responsible for other court costs, including court reporter’s costs and copying costs.
    • If the judge does not grant your motion, you may have to pay the filing fee at your hearing or trial.
  • What if I do not remember the date that my spouse and I separated and I am seeking a divorce based on a one (1) year separation?
    You need to get as close as possible, particularly if you have only been separated just over a year. If you cannot remember the exact day, then list the month and year.

 

  • What if I cannot remember the date of our marriage?
    This information is required. It is found on your marriage certificate.
    If you do not have a copy of your marriage certificate, you can get a copy from the state agency that is responsible for maintaining vital records for the state where you were married. In South Carolina, this agency is the Department of Health and Environmental Control (“DHEC”) and it will cost a small fee to get a copy of your marriage certificate.

 

  • What if I cannot remember where we were married?
    This information is required. It is found on your marriage certificate.
    If you do not have a copy of your marriage certificate, you can get a copy from the state agency that is responsible for maintaining vital records for the state where you were married. In South Carolina, this agency is the Department of Health and Environmental Control (“DHEC”) and it costs a small fee to get a copy of your marriage certificate.

 

  • What if my spouse and I separated a year ago but we were still living in the same house for some of that time?
    You cannot count the time you and your spouse lived under the same roof.

 

  • My spouse and I had sexual relations after we separated. Do we need to restart the 12 month separation period?
    Maybe. A judge may rule that an isolated act of sexual relations will restart the one (1) year period.
    You are strongly encouraged to seek the advice of an attorney.

 

  • My spouse and I tried to get back together, but it did not work out. Do we need to restart the 12 month separation period?
    Maybe. A judge may rule that this will restart the one (1) year period.
    You are strongly encouraged to seek the advice of an attorney.

 

  • Do I need a witness who can tell the court that we lived separate and apart for one (1) year?
    Yes. The witness will be required to testify at your divorce hearing. 

 

  • Can I still get a divorce if my spouse does not show up for our court date?
    Yes. You can still get your divorce if you have correctly served your spouse with both the divorce papers and notice of the final hearing.

 

  • What should I wear to my divorce hearing?
    Dress appropriately and turn off your cell phone.
    Appropriate dress includes suits, jackets, dresses, or dress slacks. Males should tuck their shirts into their pants. Casual clothing such as sweat clothes, tank tops, shorts, and similar summer beach wear is not appropriate for the courtroom. Remove hats when entering the courtroom, unless they are required for a medical condition.

 

  • Will there be a jury?
    No. South Carolina Family Court does not have juries. The judge makes the decision.

 

  • What if my spouse shows up at the hearing with an attorney?
    You can ask the judge to continue the hearing to give you a chance to get an attorney. 

 

  • What if the judge says that I cannot proceed with my divorce?
    If something goes wrong at your hearing and the judge says you cannot move forward, politely ask the judge to state specifically what you need to fix and write it down. Ask the judge to grant you a continuance so you can fix the issue and schedule another hearing.

 

  • When am I finally divorced?
    You are not divorced until the Final Order for Divorce has been signed by the judge and filed with the Clerk of Court.
    You are divorced when you receive a clocked copy of the Final Order of Divorce from the Clerk of Court.

 

  • What if I might be entitled to alimony?
    If you think you may want to request alimony from your spouse, then the court approved divorce packet will not work for you. The court approved divorce packet states that you give up your right to alimony.
    Once you file this paperwork giving up your right to alimony, you cannot change your mind at a later date and request alimony.
    NOTE: If you want to ask for alimony then you need to speak with an attorney.

 

  • What if my spouse is in the military?
    If your spouse is in the military and he or she is able to appear at the divorce hearing, you may proceed with the divorce.
    If your spouse is in the military, you may be entitled to a portion of his or her military retirement and other benefits. The court-approved divorce packet waives all your rights to military benefits. You are strongly encouraged to seek the advice of an attorney if you believe you are entitled to military benefits.
    If your spouse is deployed, you are prevented from filing a lawsuit against him or her pursuant to the Service Members Civil Relief Act. Servicemembers Civil Relief Act § 522, 50 U.S.C. app. § 501 (2011).

 

  • What if my spouse is in jail at the time of the final hearing?
    Transport to have your spouse brought to the courthouse for the final hearing. You may be required to pay the $25 motion filing fee. The court approved divorce packet does not include a Motion to Transport.
    The Order for Transportation is available for guidance.
    You are strongly encouraged to seek the advice of an attorney to help you with this process.

 

Resources

  • If you do not understand the information in these FAQs, you may want to contact an attorney.

 

  • To find an attorney who practices law in this area, please contact the South Carolina Bar's Lawyer Referral Service (LRS) at 1-800-868-2284 (toll free). LRS offers a referral by location and type of law. The lawyers who sign up with LRS are in good standing with the South Carolina Bar and must maintain malpractice insurance coverage. The lawyers also agree to a 30-minute consultation for no more than $50. After the 30-minute consultation, the fees will be the lawyers’ normal fees. Once you receive a referral, you will be expected to contact the lawyer by telephone to make an appointment.

  normal fees. Once you receive a referral, you will be expected to contact the lawyer by telephone to make an appointment.

 

  • If you cannot afford an attorney, you may contact the South Carolina Legal Aid Telephone Intake Service (LATIS) at 1-888-346-5592 (toll free) or 803-744-9430 (Columbia area). Eligibility for assistance will depend on your income and assets and the type of problem you have. The income limit to be eligible for LATIS is 125% of the Federal poverty level, which changes every year in April. There is also an asset (money in bank accounts, property, etc.) limit. Additionally, the problem you have must be within the list of problems with which S.C. Legal Services can help.