What is an Uncontested Divorce in South Carolina?

Our divorce lawyers in Charleston handle both contested and uncontested divorces in Charleston, Mount Pleasant, and the surrounding areas in South Carolina. With some divorces, the husband and wife are looking to go their separate ways without the expense and heartache of fighting with each other in family court. These couples usually wonder whether they need to hire a lawyer or hire their lawyers to get divorced. They know they need to bring their case to family court, but they do not know the process from there. In this article, we share information you need to know about uncontested divorces in South Carolina including whether you need a lawyer, whether one lawyer can represent you and your spouse, the divorce process, and more.

When is a Divorce Uncontested in South Carolina?

There are many issues for couples to consider if one or both want a divorce. If there are children, you need to address custody, visitation, support, and other details regarding your children. Marital property needs to be divided. Marital debts need to be apportioned. You need to decide whether one party will pay alimony to the other or whether you will both waive alimony. These are just some of the issues depending on the particular situation. If you and your spouse agree on all the problems, the divorce is often called “uncontested.”

Do You Need to Hire a Divorce Lawyer for an Uncontested Divorce in South Carolina?

It’s possible to get divorced in South Carolina without an attorney. However, we’ve had clients come to us because they attempted the process and found themselves unsuccessful in court. Several procedural requirements must be met. The paperwork must be correct. For example, both parties must file accurate financial declarations with the family court. Also, even if you think the agreement you’ve come up with is good, the family court still has to decide whether it is fair and equitable to both parties and in the best interests of any children involved. If you choose to attempt this process independently, we strongly encourage you to schedule a consultation at least to know your rights and better understand the process in family court. The consultation could save you time and money in the long run.

Additionally, oftentimes, when we review an agreement that spouses have written, we spot details that neither spouse thought of. When this happens, we can likely help with a solution. Here are some examples:

1) Marital Home – In some cases, the husband and wife are on the marital home’s deed, note, and mortgage. Although they decided that one of them would keep the home and be responsible for the mortgage payments, they forgot that they both remain obligated to the bank, so the other spouse can’t get a loan to buy a new home. The solution may require the spouse keeping the home to refinance the loan within a reasonable period; otherwise, the house must be sold.

2) Parenting Schedule – As another example, the couple may have devised a great parenting schedule that works for a pre-schooler, but they haven’t thought about what schedule works best for everyone when the child enters school. In this instance, the family court may send you back to the drawing board to figure out a new parenting schedule. We can help you figure out a schedule that works now and in the future.

3) Tax Consequences – In other cases, there are tax consequences to how property is transferred, support is paid, and other taxation issues that neither spouse considers when coming up with their agreement. When we advise our clients, we inform them of how their agreement may impact them with the IRS. These are just three of many examples of where an uncontested divorce should remain uncontested, but the separation agreement needs a little fine-tuning.

Can One Divorce Attorney Represent Both Parties in an Uncontested Divorce?

One divorce attorney can’t represent both the husband and the wife. In 1981, the South Carolina Bar’s Ethics Advisory Committee issued an opinion stating: “The position of the [husband and wife] in a divorce action are inherently adversary. We conclude that an attorney could and should not represent both.”

Even though we can’t represent both spouses in a divorce, we can advise the spouse who hires us and prepare an agreement according to that spouse’s wishes. We will send the agreement to the other spouse and ask if that spouse proposes that anything be changed. We will not provide any advice or substantive representations to the other spouse, except that we will encourage that spouse to have the agreement reviewed by his or her lawyer. Otherwise, we deal with the pro se (doesn’t have a lawyer) spouse fairly and professionally. After all, we want (and encourage) your divorce to remain uncontested.

What’s the Process for an Uncontested Divorce in South Carolina?

In an uncontested divorce, we ensure your agreement is signed before anyone enters the courtroom. After it is signed, we file a case with the court and request a hearing.

Also, we ensure all of the appropriate paperwork is prepared, and we attend the hearing to ensure everything runs smoothly. At the hearing, we have the agreement approved by the court so that it is enforceable. Then, we proceed with the divorce and ask the court for any name changes (typically a wife who wants to use her maiden name) if necessary.

How Much Does an Uncontested Divorce Cost?

We’ve seen posters on telephone poles advertising uncontested divorces in Charleston, South Carolina, for $150.00, even when children are involved. Knowing the filing fee in family court costs this much, we were curious how any lawyer could advertise this fee for their services. So, we called the number and visited their website to learn more. As it turns out, this advertiser was NOT a law firm, nor were they lawyers. Instead, these advertisers are non-lawyers charging people for the divorce forms and paperwork already FREE online from the South Carolina Judiciary, including instructions. As one website wrote in fine print, “We are not attorneys, nor do we portray to be. All parties are ‘pro se’ and clients will file any and all court documents as ‘pro se.’ We do not offer or provide any legal advice, opinions, conclusions, persuasions or otherwise. The services provided are only administrative and of a clerical nature . . . .”

We charge by the hour for our services. If your divorce is uncontested, we plan to keep it that way and keep your hourly fees to a minimum!

Do I Have to Wait One Year for a Divorce?

You must have a legal ground in South Carolina to get a divorce. The grounds for divorce are:

  • one year’s continuous separation,
  • adultery,
  • physical cruelty,
  • habitual drunkenness or drug use, and
  • desertion.

To “keep the peace,” most uncontested divorces we’ve seen are on the ground of one-year continuous separation. This means that we can’t file for divorce until 365 days have passed since you and your spouse separated. We caution couples not to spend one night together during these 365 days because it could reset the clock.

Even if you’re waiting for one year to get divorced, you can still go to family court to get your separation agreement approved by the court. This way, you don’t have to wait a year before you have an enforceable agreement.

What About Do-It-Yourself Separation Agreements in South Carolina?

There are plenty of free and paid online separation agreements. Some of these forms aren’t bad. However, when it comes to a divorce, one size doesn’t fit all. Your needs, your spouse’s needs, and your children’s needs are unique. You will be better served by speaking with a divorce lawyer about your situation before cramming your family’s future into a template separation agreement. Here is one example of why template divorce agreements don’t always work. In South Carolina, a spouse has inheritance rights when their husband or wife dies without a will. Just because you have a separation agreement doesn’t mean that these inheritance rights go away if the other spouse should die before the divorce is finalized. None of the template forms we’ve seen address this issue. Again, this is just one of many examples of the shortcomings of separation template forms.

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