A strong litigator who stands up for clients in York, Lancaster, and Chester Counties
Nobody wants to admit that his or her marriage just isn't working. Many couples hope it will get better and that they might rekindle the happiness they felt early in the relationship. Couples with children will frequently tough it out under the belief that it's better for their kids, when in actuality, living in an unhappy home can be worse for children.
I've personally been through divorce and complex custody case, so I know what you're going through. It's not an easy road, but what you need to know is that with the right legal counsel, divorce doesn't have to resort to a nuclear level of fighting and discord. We encourage and work for an amicable resolution to your marriage, but when that's not possible, the team at Holland Law will protect your rights and fight for your best interests.
- What are the grounds for divorce in South Carolina?
- What is the difference between contested divorce and uncontested divorce?
- How long does a divorce take from start to finish?
- What are the steps in a typical divorce?
- How does the divorce process start?
- What to expect from a temporary hearing
- What happens during discovery?
- How does mediation work?
- The final hearing
- What happens if I have to go to trial for my divorce?
South Carolina Code Section 20-3-10 allows for five legal grounds under which parties can apply for divorce, provided at least one of them qualifies as a resident of the state.
- One-year separation. This “no-fault” ground is probably the most common filing for divorce because it doesn't require any specific reason or wrongdoing of either spouse. That said, it comes with complications that parties typically have full control over. Arguing, inability to reach a fair settlement, and “revisiting” your marriage all have delaying effects that can draw your divorce out longer than necessary. Living separate and apart – under separate roofs – is a requirement to divorce under this ground. Spending even one night together during your separation may have the repercussions of setting the clock back to zero and having to wait another 365 days to finalize your divorce.
- Adultery. Many marriages end when one spouse seeks out and carries on a relationship with someone else outside the marriage. Some parties begin new relationships during their separations. Even if you initially filed for divorce under another ground, dating before your divorce has been finalized can result in adding a claim for adultery. In South Carolina, adultery is an automatic bar to alimony, and can also impact the division of property and the award of attorney fees.
- Desertion for a period of one year. This fault ground is exactly what it sounds like. Your spouse has left the marital home – and effectively your marriage – without justification. If he or she doesn't return within the year, you can file for divorce based on his or her desertion of you. (This ground is rarely used since the addition of the no-fault living separate and apart ground for divorce was added to the South Carolina Code of Laws.)
- Physical cruelty. This fault ground is typically reserved for severe cases of domestic violence, particularly where the abused party's safety or life is in jeopardy by remaining under the same roof.
- Habitual drunkenness. This fault ground includes the use of alcohol or any narcotic drug. When a spouse's drinking or drugging is so substantial that it interferes with carrying on a normal marriage, this may be your best option to obtain a divorce. Substance abuse takes a toll on a family in many ways, and puts the custody of your children, your health, finances, and even your employment at risk. It is important to note that habitual drunkenness does not mean your spouse has to be addicted. The drug or alcohol use need only be on a regular basis and it must negatively impact the marriage.
Many couples believe that their divorce is uncontested because both agree they want a divorce. Unfortunately, that's not the determinant of whether your divorce is genuinely uncontested. In an uncontested divorce, there are no unresolved issues between you and your spouse. Either you do not have any children or property together, or you agree on every issue that must be settled in a divorce.
A contested divorce is just the opposite. There are likely complicated financial issues to dispose of in addition to settling issues such as alimony, child custody and visitation, and child support. These, along with determining the equitable distribution of real estate and other assets and debts, or other matters still at issue, will be left to the decision of a judge if you and your spouse have been unable to reach an agreement.
Preventing your contested divorce from becoming contentious keeps your litigation expenses and your stress level lower. Just because you can't agree with your spouse on some of the contested issues in your case, does not mean you have to wage a long-protracted war. If you and your spouse are willing to compromise, you can settle all the issues related to your marriage and divorce by agreement. As a certified mediator in Family Law, I can help you reach an agreement that protects your interests and the interests of your children. You will have many opportunities to reach an agreement with your spouse. In fact, prior to going to trial, all divorces that do not have agreements must participate in mediation. It is important that you hire an experienced family court lawyer to make sure any agreement you and your spouse reach is not only in your best interests, but that everything that needs to be provided for in your agreement is covered.
The length of time it takes from the filing of a summons and complaint until the court issues a decree of divorce varies greatly depending on the complexity of the matters involved and the parties themselves. If you have an agreement on everything, you have lived separate and apart for a year, it is possible to get divorced in less than thirty days, assuming you and your spouse have waived some notice requirements, and the court time is available. If you have a highly contested, contentious case, your case could take two years or more for the case to be disposed of by the Court issuing a decree of divorce.
If you are filing based on fault-based grounds for divorce, you could possibly get divorced 90 days after the filing of the summons and complaint. However, this also will also depend on the complexity and contentiousness of the parties.
Most divorces take between 90 days to a year to complete. Court Administration has implemented a rule that provides that all family court cases must be disposed of in 365-days from the date of filing. It has been appropriately dubbed the “365-day rule.” The 365-day rule mandates that a case will be dismissed if it has not been disposed of within 365 days, a trial has not been scheduled, or a family court judge has granted an extension for good cause.
Below is list of the main steps in a typical divorce. Some of the steps may not be necessary. In addition, there may be many other motions and hearings in complex, contentious divorces.
- Filing of the Summons and Complaint and Answer
- Temporary Hearing (if necessary)
- Mediation (if you reach an agreement, you go to a final hearing)
- Pre-trial conference
- Final Hearing (trial)
A family court case begins with the filing of a summons and complaint with the Clerk of Court. In the complaint, the spouse asks for a divorce and will ask the Court for what he or she wants the Court to award him or her. This could be alimony, custody of the children, the family home, etc. Once you have filed the summons and complaint, they must be served or given to the other spouse. This can be done in person, by mail, or even by publication in a newspaper. The person who receives the summons and complaint will then have 30 days to respond with an answer. If your spouse doesn't respond in time, you can obtain a default judgment. In other civil courts, a default judgment will result in you being awarded everything you asked for in your complaint. However, in South Carolina Family Court, the issues of alimony, child custody/support, equitable distribution of property and debts, and attorney fees can still be addressed at a final hearing.
The next step may be to have a temporary hearing. Either party can request a temporary hearing. Often, the request is made contemporaneously with the filing of the summary and complaint. The judge will decide what happens with your assets, property, children, and any financial issues while you proceed through the litigation process. A temporary order will be issued providing for the custody and care of any children, set visitation schedule, award child and spousal support, address the use of personal property and real property, and will assign debt payments to the parties. These hearings are often referred to as “status quo” hearings. The court will attempt, when possible, to fashion a temporary order that reflects what the parties have been doing prior to the filing for divorce.
The normal temporary hearing is scheduled for only 15 minutes. The hearings are based on the affidavits presented to the court by the parties. Each party will submit up to 8 pages of affidavits. Affidavits are sworn statements that have been notarized. The parties are generally allowed to submit supporting documents for the judge's consideration as well. Depending on the judge at the hearing, the lawyers may summarize the parties' positions in two or three minutes each. There are no live witnesses at temporary hearings. While temporary orders can be modified at a final hearing, they are very important.
It is imperative that you adhere to the terms of any orders issued by the court to avoid being held in contempt. Violating an order that you disagree with may temporarily give you a feeling of vindication, but it could cost you in the long run. You'll incur additional legal fees that could have been avoided, and if the violation is serious enough, a family court judge has the ability to sentence you to up to a year in jail, a $1,500 fine, up to 300 hours of community service, or a combination of the three. Willfully violating a judge's order can also affect the outcome of your case. The inverse of this is also true. If your spouse violates an order, it may give you an advantage in your case by improving your argument related to certain issues. This could be used as leverage to help settle your case.
The next phase you enter is the discovery phase. This is where the parties engage in the exchanging of information. Unlike the temporary hearing, which is trial by ambush, at a final hearing each party will know what the other party is going to allege and the information they intend to introduce at trial to prove these allegations. Discovery also helps you find out information and get the documents and facts you need from the other side that can help you prove your case. Discovery is intended to both prove both parties' cases, and to present an honest, complete picture of all property and assets that will need to be fairly divided. Discovery can go a long way toward improving your position in your case, which often helps the parties become more willing to reach compromises. Discovery is comprised of:
- Requests for production
- Requests to admit
It's an unfortunate fact of life that the more you own, the more complicated your divorce becomes. As such, during the discovery process, it's likely that you will deal with:
- Appraisers to value real estate, personal property, and business assets
- A CPA to delve into complicated financial issues and accounts
- A forensic accountant cases to trace missing funds
- A realtor to sell a home or business for purposes of property division
- A private investigator to obtain evidence to strengthen your case
Discovery often provides you with an advantage that can help you reach an agreement. Mediation, which is mandatory in South Carolina, is typically the final major step before going to trial. This is the time for spouses to make every effort to settle their differences before incurring the stress and expense of a trial. As a certified mediator, I understand the importance this process plays in your divorce.
A neutral party who is trained and certified in handling alternative dispute resolution will work with you and your spouse to see if you can compromise and reach an agreement that you can each live with. Mediation is you and your spouse's best chance at having some control over the resolution of the issues in your case. If you cannot reach an agreement at mediation, your case will be heading for trial and a judge will make decisions on the issues that will affect the rest of your life based on the limited information he or she will have from the evidence presented at trial. The judge will never know your situation as well as you and your spouse. However, if one party is being unreasonable and will not offer a compromise that you can live with, this means you and your spouse are willing to roll the dice in court with a judge who may not decide in your favor.
Mediation is not an all or nothing proposition. It's possible to settle some, but not all conflicts and allow a judge to decide how to handle the remaining issues. The less you both leave to settle means the shorter your trial will be.
The good news is the vast majority of cases settle prior to a contested final trial.
If you were successful at mediation and were able to reach a settlement, your final trial becomes a final hearing where your agreement is placed on the record, approved by the judge, and your divorce decree can be completed. What could have been a lengthy trial with an unknown outcome, will only be a 15 minute hearing. Most of the time when you have reached a settlement, the attorneys will present the judge with a proposed final divorce decree for his or her signature. The judge will usually sign the proposed decree and the attorneys will file your signed divorce decree with the clerk of court and you will be officially divorced. However, it is important to understand that you are not legally divorced until the order has been signed by the judge and filed with the clerk of court.
If you couldn't come to an agreement during mediation, your case will be prepared for trial. You could have a few more months to go at this point, and this requires a substantial amount of work. Witnesses need to be subpoenaed to appear and testify, evidence needs to be organized, and you need to be prepared to give testimony. The more complex your legal issues are, the longer your final trial will last. In the end, the judge will make decisions as to what happens with anything you couldn't mutually agree on previously.
Should you wish to resume the use of your maiden name once your divorce is final, you may make that request to the court to be included in the divorce decree. These requests are typically granted provided the name change is not being done to escape punishment for a crime, hide from debts, or to commit fraud.
Everyone wants his or her day in court, especially when you have been hurt emotionally and feel you have been betrayed by the one you love. A trial may be your best option, or it may not. You need the objective advice from an experienced attorney to give you an honest assessment of your case.
An attorney who knows what you're going through can help you the most
If you have reached the point where divorce is inevitable, call the family law attorney that the residents of York, Lancaster, and Chester County have come to trust at Holland Law. To schedule your consultation in either my Fort Mill office on Gold Hill Road, or my Rock Hill office on Oakland Avenue, please call 803-590-6690 or fill out my contact form.