Often, our divorce lawyers in Charleston handle cases where both spouses have lived in South Carolina for years. In these family court cases, South Carolina is clearly the proper state to file for divorce. However, sometimes the other spouse lives in another state, moved away after the separation, or is stationed somewhere else in the military.
In these cases, it’s important to understand the laws that determine whether you can file for divorce in South Carolina, whether a South Carolina judge can decide custody, alimony, and property, and which county has jurisdiction. So can you get a divorce in South Carolina if your spouse lives in another state, and what can the South Carolina family court decide?
Quick Answer: Yes. You can file for divorce in South Carolina if your spouse lives in another state, as long as you have lived in South Carolina for at least one year before filing. A South Carolina court can grant the divorce itself even if your spouse never lived here, but to award alimony or child support against an out-of-state spouse, the court generally must have personal jurisdiction over that spouse. Custody jurisdiction generally depends on the child’s home state.
Table of Contents
- Can You Get a Divorce in South Carolina If Your Spouse Lives in Another State?
- What Are the Residency Requirements for Divorce in South Carolina?
- Can You File for Divorce in South Carolina If You Just Moved Here?
- Can a South Carolina Court Divide Property and Award Alimony If Your Spouse Lives in Another State?
- Which State Decides Custody When Parents Live in Different States?
- How Is Child Support Handled When a Parent Lives in Another State?
- How Do You Serve Divorce Papers on a Spouse Who Lives in Another State?
- What If Your Spouse Is in the Military?
- In Which County Should You File for Divorce in South Carolina?
- Does It Matter Which State You File In?
- Do You Need a Lawyer for a Divorce When Your Spouse Lives in Another State?
Can You Get a Divorce in South Carolina If Your Spouse Lives in Another State?
Yes. Under S.C. Code Section 20-3-30, you can file for divorce in South Carolina if you have lived in South Carolina for at least one year before filing, even if your spouse lives in another state. If you live in another state and your spouse has lived in South Carolina for at least one year, you can also file here. If both spouses live in South Carolina when you file, the filing spouse only needs to have lived here for three months.
Meeting the residency requirement allows the family court to grant the divorce itself and change your marital status. You still must prove one of South Carolina’s grounds for divorce, which we explain in our article on the grounds for divorce in South Carolina. Whether the court can also decide alimony, child support, custody, and property depends on additional rules, which we explain below.
What Are the Residency Requirements for Divorce in South Carolina?
The residency requirement depends on where each spouse lives when the case is filed. The following table summarizes the rules:
| Where the Spouses Live When the Case Is Filed | Residency Required to File in South Carolina |
|---|---|
| Both spouses live in South Carolina | The plaintiff must have lived in South Carolina for at least three months |
| The plaintiff lives in South Carolina, and the defendant lives in another state | The plaintiff must have lived in South Carolina for at least one year |
| The plaintiff lives in another state, and the defendant lives in South Carolina | The defendant must have lived in South Carolina for at least one year |
| A spouse is stationed in South Carolina on active military duty | Continuous presence in South Carolina for the required period counts as residence, even without intent to stay permanently |
Residency generally means that you actually live in South Carolina and intend to make it your home. Evidence such as a South Carolina driver’s license, voter registration, a lease or deed, employment, and tax returns can help prove residency if your spouse challenges it.
Can You File for Divorce in South Carolina If You Just Moved Here?
It depends on where your spouse lives. If your spouse also lives in South Carolina, you can file after you have lived here for three months. If your spouse lives in another state, you generally must wait until you have lived in South Carolina for one year.
If you recently moved to South Carolina and cannot file for divorce yet, you may still be able to ask the family court for other relief, such as an order for separate support and maintenance or custody, depending on the circumstances. If you have children who moved with you, be aware of the custody jurisdiction rules discussed below, and of the rules covered in our article on whether a parent can move a child out of South Carolina without permission.
Can a South Carolina Court Divide Property and Award Alimony If Your Spouse Lives in Another State?
Sometimes. South Carolina follows what is often called the “divisible divorce” concept. The family court can grant the divorce itself if the residency requirement is met, even if the court has no personal jurisdiction over your out-of-state spouse. But to order your spouse to pay alimony or child support, or to enter a property-division order binding your spouse personally, the court generally must have personal jurisdiction over your spouse. Different rules may apply to property located in South Carolina.
A South Carolina court may have personal jurisdiction over an out-of-state spouse if the spouse is served while physically in South Carolina, agrees to the court’s jurisdiction, or has sufficient contacts with South Carolina. Having lived here together during the marriage may be relevant, but it does not automatically establish jurisdiction. The court may also be able to address marital property located in South Carolina, depending on the property and how the claim is brought. Our articles on how property is divided in a divorce in South Carolina and how alimony is calculated in South Carolina explain those issues.
Which State Decides Custody When Parents Live in Different States?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which South Carolina and nearly every other state has adopted, governs custody jurisdiction. Under the UCCJEA, the child’s “home state” generally decides custody. A child’s home state is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the custody case is filed; for a child younger than six months, it is generally the state where the child has lived from birth. Temporary absences count toward that period. The following table summarizes the most common situations:
| Situation | Which State Usually Decides Custody |
|---|---|
| The child has lived in South Carolina for the six months before the case is filed | South Carolina, as the child’s home state |
| The child moved to another state less than six months ago, and a parent still lives in South Carolina | South Carolina may still have home state jurisdiction |
| The child has lived in another state for the six months before the case is filed | Usually the other state, as the child’s home state |
| The child has no home state | A state with significant connections to the child and substantial evidence about the child’s care may decide custody if the UCCJEA’s other requirements are met |
| Another state has already entered a custody order | That state usually keeps exclusive continuing jurisdiction to modify it, with limited exceptions |
This means a South Carolina court may be able to grant your divorce but not decide custody, or vice versa. Where the child has lived, and whether another state already has jurisdiction or has entered a custody order, usually matters more than where either parent now lives. You can learn more about how South Carolina judges decide custody in our article on South Carolina’s custody laws.
How Is Child Support Handled When a Parent Lives in Another State?
The Uniform Interstate Family Support Act (UIFSA) governs child support between parents who live in different states. A South Carolina court can order child support if it has personal jurisdiction over the paying parent. If it does not, the parent’s home state may need to establish support. Once a court enters a support order, it can be registered and enforced in other states. Our article on child support in South Carolina explains how support is calculated under the South Carolina Child Support Guidelines.
How Do You Serve Divorce Papers on a Spouse Who Lives in Another State?
You must properly serve your spouse with the summons and complaint. When your spouse lives in another state, service may be made by registered or certified mail with delivery restricted to your spouse and a return receipt, by a person authorized to serve process, or by your spouse signing an acceptance of service. If you cannot find your spouse after a diligent search, the court may allow service by publication, but that type of service may limit what the court can order against your spouse personally.
Your spouse generally has 30 days after being served to respond, unless the court directs otherwise for certain methods of service. If your spouse does not respond, you may be able to proceed with the case, but the court still must have the jurisdiction needed for any relief you request.
What If Your Spouse Is in the Military?
For a spouse stationed in South Carolina on active military duty, continuous presence in South Carolina for the required period counts as residence for divorce purposes, even if the service member does not intend to stay here permanently. If your spouse is on active duty elsewhere, the federal Servicemembers Civil Relief Act may allow your spouse to request a stay of the proceedings and provides protections against default judgments.
Military retirement benefits may be divided under the federal Uniformed Services Former Spouses’ Protection Act, but only if the court has the type of jurisdiction over the service member that federal law requires. Being stationed in South Carolina under military orders alone does not satisfy the federal jurisdiction requirement to divide retired pay.
In Which County Should You File for Divorce in South Carolina?
Under S.C. Code Section 20-3-60, a divorce may be brought in the county where the defendant lives when the case is filed, in the county where the plaintiff lives if the defendant lives out of state or cannot be found after a diligent search, or in the county where the spouses last lived together, unless the plaintiff is a nonresident.
If the plaintiff is a nonresident, you must file in the county where the defendant resides. When your spouse lives in another state, you will usually file in the South Carolina county where you live, although the county where you last lived together as spouses may also be an option.
Does It Matter Which State You File In?
Yes. Each state has its own laws on grounds for divorce, alimony, property division, and child support, and the outcome of your case can depend on which state’s court hears it and which law applies. Filing in South Carolina generally means the case will move forward under South Carolina’s family court procedures, including temporary hearings in South Carolina; whether you need to attend in person depends on the circumstances.
If your spouse may file in another state, talk to a lawyer quickly, because a filing in another state can affect which court decides certain issues. Filing first does not, by itself, give a court jurisdiction over every issue.
Our article on how to file for divorce in South Carolina walks through the forms, filing, and service step by step.
Do You Need a Lawyer for a Divorce When Your Spouse Lives in Another State?
Divorces involving an out-of-state spouse raise jurisdiction questions that can determine whether you get alimony, child support, or custody in South Carolina at all. A lawyer can help you decide where and when to file, make sure your spouse is properly served, and protect your rights if your spouse files in another state. The attorneys at Futeral & Nelson have represented clients in divorce cases in Charleston, Mount Pleasant, North Charleston, Summerville, and throughout the Lowcountry since 2003. Call us at 843-284-5500 to discuss your situation.
