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Fact v. Fiction Uncontested and “No-Fault” Divorce in South Carolina

In South Carolina there are many grounds for divorce. When a person files for divorce, they must have grounds to terminate the marriage. In other states there are such things like “irreconcilable differences”. South Carolina does not permit divorce just because you and your spouse no longer get along. However, South Carolina Laws do allow you to divorce if you and your spouse have lived separate and apart without cohabitation for a period of one year. There are many misconceptions relating to the idea of an uncontested divorce which should be cleared up before you decide whether you have an uncontested divorce.  All situations are unique and the term “uncontested divorce” is a term of art which is used to described a situation where the parties are not fighting on anything and have come to terms on everything. Some states allow a dissolution which is similar to a divorce however is done by agreement and depending on the state may not require a court appearance or hearing. South Carolina does not allow for a dissolution and requires at least one litigant to appear in court.

For a truly uncontested divorce the parties must agree on everything between them, except for a few things explained below which they cannot agree to. Both spouses must agree on all issues of property, issues pertaining to the children, and any other marital issues that will need to be resolved to end the marriage completely. If even one issue is not settled between the parties you do not have an uncontested divorce. If you have a more complicated divorce you should call an attorney to discuss your options.

BELOW I WILL GO THROUGH SOME FACTS AND FICTIONS RELATING TO UNCONTESTED DIVORCE.

FICTION: You never need an attorney for an uncontested divorce. Although an uncontested divorce can be achieved without an attorney, beware of the many programs out there that advertise they will help you fill out the forms without going to court with you. A paralegal is not allow to give you legal advice. Further, you may need the help of an attorney to make sure you are not giving up legal rights that you or your children are entitled to and have been granted to you by our legislature and constitution. YOU MAY NOT BE ABLE TO GET YOU OR YOUR CHILDREN’S RIGHTS BACK IN THE FUTURE. You should always consult with an attorney before proceeding with a divorce action.

The South Carolina Supreme Court has authorized the use of a Self-Represented Litigant which you can utilize if you feel you do not want to you an attorney. You can find those documents here.

FACT: You and your spouse can agree to something the judge may not have ordered, even if it is an uncontested divorce. Although your divorce is uncontested it does not mean the court is going to treat your divorce like “every other” case and force you to enter into the same old agreement that your sister-in-law had. You can craft a unique agreement with your spouse before entering court and this allows you to be able to ensure the best outcome for your case.

FICTION:  You can get divorced in South Carolina for only $149 total out of pocket expense.  There is no way you can spend less that $150 to be divorced. Any program that advertises differently is likely not doing something, not completing your divorce fully, or is not a licensed attorney. The filing fees, which are fees paid to the court to file your case, as of 2013 cost $150 to file a case in the family court. Therefore if you think you are going to get a divorce for just $149 please start to consider the real cost of the divorce. There are many attorneys who do offer discounted fees and there is even the South Carolina Divorce Boot Camp which will begin in September 2013 and run monthly to help people cost effectively approach uncontested divorce. The South Carolina Bar Referral Service, Charleston Pro Bono Legal Services or South Carolina Legal Services can provide information on programs which might be able to legitimately help you in your time of need.

FACT:  Your spouse may not have to appear at a final hearing for you to get a divorce. This is true. If you have proper service on your spouse and you have done everything properly, only the Plaintiff needs to show up to the final hearing. If the Defendant is a woman, and wishes to change her name, she must show up to answer a few questions to the Judge at the hearing. However, if the Defendant is male, or a female not wishing to change her name, they do not have to appear at the final hearing. NOTE: proper service needs to be done for this to be true. Information on service of process can be found here.

FICTION: If the divorce is uncontested I don’t need a witness.  The South Carolina Code of Laws requires that the Plaintiff, the person filing for divorce, show the fact that they have alleged to the court to a certain level. Usually in an uncontested divorce the grounds, reason, for divorce are the parties have been living separate and apart without cohabitation for more than 1 year. For you to be able to prove this fact in South Carolina the Plaintiff must bring a witness who can testify to these facts in court at the final hearing. Discussion of witnesses at the final hearing will be discussed in future blog posts.

FACT: A spouse can change their name in an uncontested divorce, even if the other party does not wish for them to. This is understandably confusing. The court requires in uncontested divorce ALL issues be settled. However, the option to resume a maiden or former name is the option of the wife involved to request and may be granted by the court. A name change is one of the two things that the parties cannot agree to (the other being divorce).

FICTION: The parties can/must agree to divorce. The parties in a divorce CANNOT agree to a divorce. The South Carolina Law requires that the judge make certain findings in a divorce which the parties cannot agree about. A few of them are the following:

  1. The parties have not worked to mislead the court or the judge to obtain a divorce.
  2. The person asking for the divorce has presented the proper evidence.
  3. There is nothing the court or anyone could do to reconcile the parties or save the marriage.

FACT: The South Carolina Supreme Court has said all family law cases need to be resolved within one year. True, the South Carolina Supreme Court has said this. However, often times the judges are permitted to use their discretion to allow a case to last longer than that for several reasons. Do not count on what is known as the 365 Day Rule as a hard and fast deadline for your case. You never know how the other party might act or what might happen.

FICTION: Uncontested divorce is the fasted way to divorce in South Carolina, and I can get divorced as quickly as the same day as I file.  If someone has told you that an uncontested divorce is fast, will happen the same day, the same week or same month as you start to think about divorce, THINK AGAIN. Divorce is a lengthy process no matter how you go about it. Although an uncontested divorce could potentially be less time consuming, if your spouse decides to fight you, it could potentially take longer than expected. Also, UNDER NO CIRCUMSTANCES WILL YOU GET AN UNCONTESTED DIVORCE ON THE GROUNDS OF ONE YEAR SEPARATE AND APART UNLESS IT HAS BEEN 1 FULL YEAR 365 DAYS SINCE YOU AND YOUR SPOUSE LAST STAYED IN THE SAME HOUSE OR ON THE SAME PROPERTY (even if it was just one quick hook up, or just one night).

You should always be prepared for a divorce to take longer than expected. Do not plan your wedding for the day after your divorce hearing.  IN SOUTH CAROLINA MOST TRULY UNCONTESTED DIVORCES AVERAGE 3-6 MONTHS BEFORE THEY ARE FULLY RESOLVED. (BUT, again do not rely on this- always plan for more time).

FACT: I can be divorced the same day as I go to court. You can most certainly have a divorce decree ready and signed the day you go to court. You are not divorced until a judge signs your divorce decree and it is stamped and entered in by the Clerk of Courts. This means if you are going to represent yourself you have to have your order ready the day you go for your final hearing. There are additional paperwork that you need in addition to just the Decree of Divorce which you will also need for the clerk of Court, such as the Form 4 cover sheet and the Report of Divorce or Annulment of Marriage. An attorney representing you will have these forms or will prepare these forms when submitting the Order to the Judge.

FICTION: An uncontested divorce is less emotional and easier than a “regular” or contested divorce.  Unfortunately, a divorce is not easy and even for people who have been separated for many years the divorce process can be emotionally taxing and difficulty. A “regular” divorce may be hard for people who are fighting day in and day out, however, an uncontested divorce is its own beast and you should consider getting the help you need from professionals who are trained to deal with divorce prior to entering into this phase of your life.

FACT: If you start working on an uncontested divorce you can always switch to a “regular” or contested divorce if that seems more appropriate. While an uncontested divorce is a good path to take, often times someone will run into a snag in the process or find out information that causes them to change their outlook and want to have the Judge make a decision on something, even if it is just one thing. If this occurs I would recommend you call an attorney immediately so that you do not give up any of your rights.

FICTION: You and your spouse must agree on everything PRIOR to meeting with an attorney. An attorney can often answer your questions at a consultation or other meeting with you that will help you to determine if you have an uncontested case. Also, a consultation with a lawyer can give you information that will help you to discuss with your spouse how thing should be settled. For an uncontested divorce you only need to have everything settled that you would normally be asking a judge to decide, such as property and issues pertaining to the children.

FACT: Both parties can participate in negotiations and both parties will have to sign the agreement. Both parties should participate in the discussion between the spouses of how the case will be settled. This is important to ensure everyone agrees to the agreement because both parties will have to sign the agreement. However, the South Carolina Bar Ethics rules prohibit an attorney from representing both parties.  That means one attorney can only represent and provide legal advice to one of the spouses.  However, that does not necessarily mean the other party must retain the services of an attorney. While, it is usually recommended the other spouse at least consult with an attorney, it does not mean they must have an attorney.

FACT: An uncontested divorce can be completed with an attorney for a flat-fee.  Many attorneys, including The Power Legal Firm, offer flat fee options for uncontested divorce litigants to take the element of surprise and confusion out of the financial aspect of an uncontested divorce. The cost if often determined on a case-by-case basis based on the complexity of your case and how it can be resolved. However, the Powers Legal Firm offer an Uncontested Divorce Boot Camp which can provide you with the services you need for your contested divorce if you qualify.

IF YOU HAVE QUESTIONS ABOUT AN UNCONTESTED DIVORCE, THE SOUTH CAROLINA DIVORCE BOOT CAMP OR OTHER FAMILY LAW ISSUES CONTACT US AT 843.261.7025 TO SET UP A CONSULTATION.

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