In South Carolina, like in many other states in the U.S., there are two different types of divorce: Fault-based divorce, and no-fault divorce. As their names imply, the difference between the two is whether one spouse has done things during the marriage that makes him or her responsible, or at fault, for the dissolution of the marriage.
However, there is more to the difference between fault-based divorces and no-fault divorces than just the culpability of your spouse in making the marriage fail. The process for filing for a divorce, and the court procedure for each type of divorce, is slightly different between the two categories.
Because fault-based divorces involve accusing your spouse of conduct that was the basis for a failed marriage, they are considerably more contentious than a no-fault divorce proceeding. Fault-based divorces include higher standards of proof, attorneys, discovery requests, formal hearings, and can even culminate in a trial. As a result, fault-based divorces can be long, drawn-out affairs that are taxing on both your emotional and financial well-being.
No-fault divorces, on the other hand, are relatively simple and straightforward, without a lot of the formal processes that a fault-based divorce requires in order to become final. The lack of formality is because no-fault divorces do not require you to prove that your spouse committed certain conduct that gives you the legal right to file for a divorce from them. Without this required evidence, there is little reason to go through the formal process of a legal proceeding.
Instead, no-fault divorces require a much lighter set of formalities, and can be completed much quicker than a fault-based divorce.
In fact, if certain requirements are met, a no-fault divorce might be eligible for a simple divorce process, which only requires the filing of some paperwork, and showing that these additional requirements for a simple divorce have been met.
Legal Requirement for a No-Fault Divorce – Separation
While fault-based divorces require one of the spouses to actually be at fault for the dissolution of the marriage – whether it be because they were habitually drunk, physically abusive, committed adultery, or deserted the other spouse – the only thing that needs to be established for a no-fault divorce is that you have been separated from your spouse for more than a year.
This separation, however, has to be voluntary. It cannot be the result of something that happens outside of the marriage’s control, like one spouse being called to military duty or being put in jail. However, a separation is not made involuntary just because one spouse wants to save the marriage, and the other spouse leaves. The fact that the leaving spouse made the voluntary choice to leave makes the separation voluntary, even though the remaining spouse did not want it to happen.
Additionally, in South Carolina, in order for spouses to be considered “separate,” they have to live in different residences – it is not enough for them to sleep in different bedrooms in the same house.
Lastly, this separation has to last for more than 365 days before you can file for a no-fault divorce from your spouse.
Additional Legal Requirements for Simple Divorces
In addition to having to prove separation for a no-fault divorce, simple divorces need proof of a few additional elements. If proven, however, they can expedite the divorce process and make it much, much simpler.
- Residency requirements
One of the things that you have to show in order to benefit from the simple divorce process is that you and your spouse satisfy certain residency requirements. These are satisfied in one of two ways: Either that you or your spouse have lived in South Carolina for a year before filing for divorce, or that both you and your spouse have lived in South Carolina for more than three months before filing for divorce.
- Marital property
If the residency requirements are met, then you also have to satisfy the requirements surrounding marital property and debt.
Marital property is the list of all of the assets that you acquired during your marriage, including wages and personal belongings, while marital debt is the debt that you and your spouse have been saddled with during your marriage.
In order to meet the requirements for a simple divorce proceeding, you either have to have no marital property or debt, or have already reached an agreement as to how to divide it, setting out who gets what, and who has to pay off what debt you have built during the marriage.
- Child custody
In addition to figuring out the terms of property division, in order to qualify for a simple divorce proceeding, you will also have to do the same with regard to any children that you have had together.
If you and your spouse have a minor child when you file for a simple divorce on the no-fault grounds of separation, then you will have to already have determined who will get what type of child custody, how visitation will work, and have settled on a child support agreement that also comports with the South Carolina Child Support Guidelines.
If you do not have children, and are not expecting to have children with your spouse, then you will satisfy this requirement, as well.
Simple Divorces Often Require a Family Law Attorney
As you can see from the requirements for a simple divorce, it is often not possible unless you and your spouse are able to come to many very difficult agreements on your own. For most people going through a divorce, coming to so many agreements so amicably is not possible. Even for those who are able to do it, it is often because of the help of an experienced and skilled family law attorney in South Carolina.
If you are interested in a divorce and want to know what your options are, contact the Elliott Frazier Law Firm, LLC to speak with an attorney who is experienced in South Carolina divorce law and who will always put your interests first.