Ending a marriage is often a very emotional time for everyone involved. Before proceeding with a divorce in South Carolina, it is important to understand the basics of what does “divorce” actually mean in South Carolina. Our experienced family law attorneys at Conrad Trosch & Kemmy, P.A. are here to educate you and guide you through this emotional time in your life and provide you with peace-of-mind when facing these difficult situations.

Before you can proceed with a divorce in South Carolina, you must first confirm there is a valid marriage in the first place. Parties who obtain a marriage license and follow the requirements for completing the license will be deemed to have entered into a valid marriage. For those who were married without a license, you need to consider whether or not the marriage constitutes a “common law marriage”. While South Carolina has historically recognized common law marriage, as of July 24, 2019, the South Carolina courts abolished common law marriage. What does that mean? Simply put, from July 24, 2019 and forward, you cannot enter into a valid marriage in South Carolina without a license. However, it may be possible to establish a common law marriage existed prior to the Court’s opinion. It is important to consult with an experienced South Carolina family law attorney to answer your questions about marriage and common law marriage.

Assuming a valid marriage exists, parties who desire to no longer be married to their spouse are able to seek a divorce in South Carolina, which ends the marital relationship between the parties. Unlike North Carolina which is a “no-fault” state, South Carolina recognizes 5 grounds for divorce, which include 4 “fault” based grounds. The 5 grounds for divorce in South Carolina are: 1) adultery; 2) desertion; 3) physical cruelty; 4) habitual drunkenness; and 5) continuous separation for a period of at least 1 year. The first 4 are considered “fault” based grounds, which generally allow a party to file without being separated for a continuous year, and which require corroboration through witnesses and/or evidence. Unlike the “fault” based grounds, the 5th ground, continuous separation for a period of at least 1 year cannot be filed until the parties have actually separated and have in fact lived separate and apart for 1 continuous year.

There are defenses to the “fault” grounds that can be presented for the court’s consideration. If the court finds the defense to be credible, the court can reject the fault ground.

It is important to consult with an experienced South Carolina family law attorney before making a decision to move out to ensure that your decision to leave the house does not have a negative impact on your legal rights. Further, it is important to discuss and consider the impact moving out of the marital residence may have on custody determinations by a Judge at a future date.

A “legal separation” in South Carolina is technically referred to as a “Decree of Separate Maintenance”. Technically, there is no cause of action for a “legal separation” – meaning, you are not required to obtain a court order for permission to live apart from your spouse. An action for separate support and maintenance allows the parties to bring claims before the family court for issues of distribution of assets and debts, child custody and support, spousal support and the like. The family court has exclusive jurisdiction to decide those issues, and can do so before the divorce is finalized. To file for such claims, the parties must be living separate and apart.

After making a decision to separate and divorce in South Carolina, people often ask if they are allowed to date someone else while they are separated. It is very important to remember that until the divorce judgment has been signed by the Judge, you are still married. Dating while separated and before the divorce is finalized can have a negative impact on alimony claims and custody claims. This is a very important topic to discuss with your attorney.

While annulments are possible in South Carolina, they are very difficult to obtain, and require the party seeking the annulment to prove one or more of the following: 1) fraud; 2) duress; 3) no consummation; or 4) no cohabitation. Annulments are orders that declare the marriage never existed, and is due to one of the reasons provided above.

If you or a loved one have questions about divorce in South Carolina or are facing a divorce in South Carolina, the experienced attorneys with Conrad Trosch & Kemmy, P.A. are available to assist and guide you through the process so that you are not alone.

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