I frequently get asked "what are the grounds for divorce in South Carolina" and "do I really have to wait a year to get divorced?" The answer, as always, is it depends. In South Carolina there are two types of divorces- fault and no fault. No fault divorces can be granted upon the separation of one year and I'll discuss that process in this post. At fault divorces do not have a year long separation requirement and I will discuss the at fault grounds in another post.
The only way one can obtain a no fault divorce in South Carolina is by "living separate and apart without cohabitation for a period of one year." A divorce on this ground can be granted immediately once responsive pleadings are filed, or thirty days after the defendant is served if the defendant does not respond. For a divorce under separation of one year both parties must be aware of the fact that they are separated before a divorce can be granted. This is important for our military personnel because separations caused by military service cannot be used as a basis for divorce unless the parties separated before the forced separation for reasons other than military service.
The term "separate and apart" for the purpose of a no fault divorce means that the spouses are not living together under one roof. The South Carolina Supreme Court has found that even when the husband and wife testified that they lived in separate rooms and did not have sex for the year long period, that the spouses did not live separate and apart in the eyes of the law and therefore did not meet the requirement to obtain a divorce. This means that the husband and the wife must live in separate houses, apartments, etc. during the year long separation.
The Courts, however, have been unclear whether spouses who have sexual relations during the one year separation or attempt to reconcile should be forced to restart the one year clock after the event before they are divorced. No South Carolina courts have directly addressed this concern, however, family court judges will examine the intentions of the husband and wife and the facts surrounding the sexual intercourse. As a practical matter I would advise all my clients that some family court judges will rule that an isolated act of sexual relations requires the one year period of separation to restart and I advise my clients against this.
To obtain a no fault divorce in South Carolina, one does not have to file anything with the courts to start the one year clock. One can file as soon as the year is over and the court may schedule the hearing on the no-fault immediately upon filing as long as the other spouse is served with the action and has either answered or allowed the thirty day time frame for an answer to elapse.
If you or a loved one has any questions regarding your rights during a divorce please do not hesitate to contact Thrower & Schwartz.