Charleston Family Law attorney

Must married couples be separated for one year before starting the divorce process?

Married couples must wait one year before an uncontested divorce, but can permanently resolve all issues between them much earlier than this.

While this sounds counter intuitive, it actually makes a lot of sense. In South Carolina an uncontested divorce can not happen until the parties are separated one year.  This aligns with South Carolina policy to promote families and marriage. While it is very rare for the one year waiting period to result in a reconciliation, it does prevent people from re-bounding quickly to an other, perhaps equally bad or worse, relationship.

When people are married two things are going on. One is that the State of South Carolina Department of Health and Environmental Control recognizes the couple as being “married” and lists them as such in Vital Records. The second thing that happens when people are married is they acquire all kind of “stuff”, or “marital property” and children- homes, cars, cash, investments, retirement accounts, kids, etc., that must be divided up.

A lot of bad things can happen if married people separate and try to wait out the one year without any type of agreement, either informal or written. Who will make the mortgage payment, how will co-parenting work, which car goes to what person, what happens to cash, savings, investment accounts. Furthermore, what if one persons should need some type of financial support?

South Carolina Code of Laws allows people to resolve the “stuff” of the marriage separate from the marriage relationship. Parties can go to the Family Court and obtain Court Orders, or have Agreements approved, that permanently resolve all issues between them prior to the one year separation period. This means that parties can permanently resolve issues of property division, support, and custody once they are no longer living under the same roof while still remaining technically married. The only caveat is that issues of custody and support can (almost) always be modified based upon a substantial change in circumstances.

Should the parties be unable to reach an agreement, mediation will be ordered. If mediation is not successful (which is extremely rare) the case will be set for trial on issues of property division, custody and support. A court order from a trial is appealable to the South Carolina appellate courts.

Once an Agreement is approved by the Family Court, or an Order is issued from at trial, the parties have permanently resolved all issues between them but they still remain legally married. All that needs to be done at this point is for the parties to go back to Family Court after they have lived under separate roofs for 365 days and obtain a simple, uncontested divorce that will take about 10 minutes.  

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