For an uncontested divorce in South Carolina, a husband and wife may want to go their separate ways without the expense and heartache of fighting in family court. These couples usually wonder whether they need to hire a lawyer and whether one lawyer can represent both of them. They know they need to bring their case to family court, but they need to know the process from there.
In this article, our Charleston divorce lawyers explain what you need to know, including whether you need a lawyer, whether one lawyer can represent you and your spouse, the divorce process, the cost, and more. So how does an uncontested divorce work in South Carolina?
Quick Answer: An uncontested divorce in South Carolina is one in which you and your spouse agree on every issue, including custody, support, alimony, and the division of property and debts. Most are based on one year of living separate and apart without cohabitation. After you sign the agreement, you file a case, and the family court ordinarily holds a hearing to review the agreement and grant the divorce. One lawyer cannot represent both spouses.
Table of Contents
- Do You Need to Hire a Lawyer for an Uncontested Divorce in South Carolina?
- What Is an Uncontested Divorce in South Carolina?
- Can One Divorce Attorney Represent Both Parties in an Uncontested Divorce in South Carolina?
- What’s the Process for an Uncontested Divorce in South Carolina?
- How Much Does an Uncontested Divorce in South Carolina Cost?
- Do I Have to Wait One Year for an Uncontested Divorce in South Carolina?
- What About Do-It-Yourself Separation Agreements for an Uncontested Divorce in South Carolina?
- How Can a Charleston Divorce Lawyer Help With Your Uncontested Divorce?
Do You Need to Hire a Lawyer for an Uncontested Divorce in South Carolina?
You can get divorced in South Carolina without an attorney. However, clients have come to us after trying the process on their own and being unsuccessful in court.
Several procedural requirements must be met, and the paperwork must be correct. For example, when a party’s financial condition is relevant or is an issue for the family court, both parties must serve and file current financial declarations. Also, even if you think the agreement you’ve developed 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 understand your rights and the family court process. The consultation could save you time and money in the long run.
Additionally, when we review an agreement spouses have written, we often spot details neither spouse considered. When this happens, we can likely help with a solution. Here are some examples:
- Marital Home: Sometimes, the husband and wife are both 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, they must sell the house.
- Parenting Schedule: The couple may have devised a great parenting schedule that works for a preschooler, but they haven’t considered 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. We can help you figure out a schedule that works now and in the future.
- Tax Consequences: In other cases, property transfers, support payments, and other tax issues can have tax consequences that neither spouse considered when drafting the agreement. When we advise our clients, we explain how their agreement may affect 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.
When Is an Uncontested Divorce in South Carolina?
Couples considering an uncontested divorce in South Carolina must address several issues. If there are children, you need to address custody, visitation, support, and other details regarding your children. You must divide marital property and apportion marital debts. You need to decide whether one party will pay alimony or whether you will both waive it.
If you and your spouse agree on all of these issues, the divorce is often called “uncontested.” However, if you dispute any of these issues, your divorce is contested. Our article on what happens if your spouse refuses to sign divorce papers explains what to expect when your spouse will not cooperate.
The following table summarizes the issues that are typically resolved in an uncontested divorce:
| Issue | What You and Your Spouse Must Agree On |
|---|---|
| Child custody | Which parent has primary custody, or whether custody is shared, and how decisions about the children are made |
| Parenting schedule | When the children are with each parent, including holidays, summers, and school breaks |
| Child support | The amount of support, which is generally calculated under the South Carolina Child Support Guidelines |
| Alimony | Whether one spouse will pay alimony, and if so, the type, amount, and duration, or whether both spouses waive it |
| Marital property | Who keeps the home, vehicles, retirement accounts, bank accounts, and other marital assets |
| Marital debts | Who is responsible for the mortgage, car loans, credit cards, and other debts |
Can One Divorce Attorney Represent Both Parties in an Uncontested Divorce in South Carolina?
One divorce attorney can’t represent both the husband and the wife in an uncontested divorce in South Carolina. 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 is inherently adversarial. We conclude that an attorney could and should not represent both.”
Even though we can’t represent both spouses, 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 whether that spouse proposes any changes.
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 own lawyer. Otherwise, we deal with the pro se (self-represented) 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 in South Carolina, we ensure you sign your agreement before anyone enters the courtroom. After you sign, we file the case with the court and request a hearing.
We also prepare all required paperwork and attend the hearing to ensure everything runs smoothly. At the hearing, we have the court approve the agreement so it is enforceable. Then, we proceed with the divorce and, if needed, ask the court for any name changes (typically for a wife who wants to resume her maiden name).
If the only relief sought is a divorce based on one year of separation and any related name change, the court may grant the divorce without a hearing if the required written testimony and other conditions are met.
The following table summarizes the typical steps in an uncontested divorce:
| Step | What Happens |
|---|---|
| 1. Separate | For a no-fault divorce, you and your spouse live in separate residences without cohabitation for one year |
| 2. Reach an agreement | Your lawyer prepares a written agreement resolving custody, support, alimony, property, and debts, as applicable |
| 3. Sign the agreement | Both spouses sign the agreement before anyone goes to court |
| 4. File the case | A summons and complaint are filed with the Clerk of Family Court, and the other spouse is served or accepts service |
| 5. Attend the hearing | The judge reviews the agreement, approves it if appropriate, and grants the divorce once the grounds are proven |
How Much Does an Uncontested Divorce in South Carolina Cost?
For divorces in South Carolina, most lawyers charge by the hour, and their hourly rates vary depending on the lawyer’s experience. The more experienced the lawyer, the higher the hourly rate. That being said, a more experienced lawyer can often get the work done faster.
As for how many hours it takes (and how much you pay) for a lawyer to get you an uncontested divorce in South Carolina, the answer depends on several things, such as:
- How complex your divorce is: Cases involving child custody, visitation, or complex finances typically take longer and cost more than a divorce with no children or assets.
- How organized and helpful you are: Some clients are well prepared and have all the information and financial documents a lawyer needs. The more disorganized and unprepared you are, the more hours your lawyer will spend preparing and processing your divorce.
- How uncontested your divorce is: If you and your spouse have reached a comprehensive agreement, your lawyer can process your divorce faster. However, if issues remain unresolved, such as a parenting schedule, your lawyer will spend more time negotiating a resolution.
The following table summarizes how these factors affect the cost:
| Factor | Lowers the Cost | Raises the Cost |
|---|---|---|
| Complexity | No children and few assets | Child custody issues or complex finances |
| Organization | You provide complete financial documents promptly | Your lawyer must gather missing information |
| Level of agreement | You and your spouse agree on every issue | Some issues still need to be negotiated |
So, if your divorce isn’t complex, you are organized and prepared, and your divorce is truly uncontested, the cost may be $2,500 to $4,500. However, if there are complications, even an uncontested divorce in South Carolina may cost several thousand dollars more. Our article on how to choose the best divorce lawyer in Charleston explains how fees are typically structured.
We charge by the hour. 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 an Uncontested Divorce in South Carolina?
Probably. You must have legal grounds in South Carolina to get a divorce. The grounds for divorce are:
- one year of living separate and apart without cohabitation;
- adultery;
- physical cruelty;
- habitual drunkenness, including habitual drunkenness caused by the use of narcotic drugs; and
- desertion for one year.
To “keep the peace,” an uncontested divorce in South Carolina usually requires one year of living separate and apart without cohabitation. This means you generally can’t file for divorce on that ground until the full year has passed since you and your spouse separated. We caution couples not to resume living together during that year because it could reset the clock. Our article on whether you should move out before your divorce explains what counts as a separation.
Even if you’re waiting a year to get an uncontested divorce in South Carolina, you can still go to family court to get your separation agreement approved. This way, you don’t have to wait a year before you have an enforceable agreement. For more on timing, read our article on how long it takes to get divorced in South Carolina.
What About Do-It-Yourself Separation Agreements for an Uncontested Divorce in South Carolina?
South Carolina’s court system provides online information and documents to help you file your own “simple” divorce, but the court does not provide a sample separation agreement. However, plenty of free and paid online separation agreements are available, and some of these forms aren’t bad.
When it comes to an uncontested divorce in South Carolina, however, no one-size-fits-all approach works. Your needs, your spouse’s needs, and your children’s needs are unique. You will be better served by speaking with our divorce lawyers about your situation before cramming your family’s future into a template separation agreement. If you still plan to proceed on your own, our article on how to represent yourself in a South Carolina divorce explains the risks.
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. A separation agreement can waive those rights before the divorce is finalized, but its effect depends on its terms and whether South Carolina law treats it as a waiver or a complete property settlement. A template agreement that fails to address these rights clearly can create problems if either spouse dies before the divorce is finalized. It is just one of many shortcomings of template forms.
How Can a Charleston Divorce Lawyer Help With Your Uncontested Divorce?
A lawyer can review or prepare your agreement, spot issues you and your spouse may have missed, prepare the paperwork, and guide you through the final hearing to keep your divorce uncontested.
For a deeper look at the South Carolina divorce process, download our free book on divorce in South Carolina. It is available as a PDF or on Apple Books at no cost.
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 case and your options.
