Getting Started With The Divorce Process In South Carolina

Getting started with the divorce process in South Carolina can sometimes be more difficult than would appear necessary. Our official state policy in support marriage (only between opposite sex couples!) can make starting the divorce or separation process difficult.

In 2011 the South Carolina Supreme Court made it much more difficult for married people to amicably separate and resolve the financial and other issues between them. In the matter of Theisen v Theisen the Court found that the only way the family court could approve a settlement agreement between parties who desired to end their marriage, without first making an allegation of legal fault, would be for the parties to be physically separated.

This sounds logical. Why in the world would a couple want a court to approve a settlement agreement while they are still residing under the same roof? Perhaps the better question is why should the State of South Carolina care how we arrange our personal affairs?

South Carolina has long standing policy in promoting marriage. As our federal courts have shown us, this is an evolving standard that was once only applicable to opposite sex, same race, couples. In fact, prior to ruling upon a request for divorce, Section 20-3-90 of our Code of Laws requires all family court judges to ask couples if the court can do anything to assist them in remaining married.

On the other hand, a couple can file for divorce at any time while they are still living together if they allege that their spouse is a drunk, an adulterer, or is violent. As such, if parties are unable or unwilling to physically separate prior to filing for divorce our laws provide the parties with the proverbial “hobson’s choice” : either file for divorce on fault based grounds or remain married. In other words, since the State is so concerned about upholding the sanctity of marriage it requires people to remain living together or go to war in the family court. While it seems silly that this is our official state policy, the facts force such a conclusion.

There are many situations in which parties are unable or unwilling to separate physically but need a court order that resolves their property and child related issues. For example, equity in the marital home may be the only available cash that the parties can access to generate the funds necessary to permit one person to move into a new residence. Banks often times will not permit a refinance relieving one party of their obligation on a mortgage without a court order, but no court order can be obtained while the parties are still living together!

Rather than file a lawsuit on fault grounds and generate months of nasty family court litigation (and large legal fees to the divorce lawyers), forward thinking lawyers who have compassion for all family members involved will need to be creative. For example, in a recent Collaborative Practice case we negotiated a complete resolution of all financial and parenting issues by way of a signed, notarized, multi page Settlement Agreement. We then agreed that Dad would live with a friend for a short time while we filed the case and had our Agreement approved by the Family Court. Mom then refinanced the home, paid Dad out his share of the equity, and Dad purchased a new home.

Our antiquated family court system in South Carolina needs to be modernized, and those of us who practice in this court and care about the families that are affected by its policies have plenty of thoughts as to how things can be improved. However, when our elected representatives consider women a “lesser cut of meat”, we understand that reform, especially as it relates to women, will be difficult to come by.




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