No, you do not have to have a lawyer if you and your spouse are filing for an uncontested divorce in South Carolina. However, it is highly recommended that you seek the advice of a qualified family law attorney in all divorce cases. There may be some issues that you have not considered, and it may turn out that you are eligible for alimony/spousal support or certain property that you did not realize you were entitled to. This is why it is always best to at least speak with a lawyer before going forward, so you are fully advised of your legal rights and options. That way, you can make the most informed decision on how you wish to proceed.
What is an Uncontested Divorce?
An uncontested divorce is one in which the couple is in full agreement on everything. This means you agree on exactly which assets and liabilities will belong to each spouse, how much child support or alimony will be paid (where applicable), who will have primary custody of the children, parenting plans, visitation schedules, and everything else.
It is important to understand that an uncontested divorce is not the same as a no-fault divorce. While an uncontested divorce can be done using “no-fault” grounds, there are many other no-fault divorces that are contested. In contrast, an uncontested divorce does not necessarily have to be on “no-fault” grounds where, for instance, both parties acknowledge and admit adultery or another fault ground took place. (Note that grounds for divorce can only be granted by a judge, though, so they still must be proven even if neither party objects to the grounds.)
A no-fault divorce simply means that neither spouse is claiming a fault ground (such as adultery, habitual drunkenness, or physical cruelty) for the marriage dissolution. Instead, they are getting divorced because of “irreconcilable differences”. But just because a divorce is no-fault, this does not necessarily mean the process will be smooth. In fact, the vast majority of no-fault divorces in South Carolina have at least some issues that are contested. However, where an uncontested divorce is possible, there are many advantages to pursuing that avenue over contested litigation—including savings in time, money, and stress.
What are the Requirements for an Uncontested Divorce?
In South Carolina, either spouse must be a resident of the Palmetto State for at least one year in order to file for an uncontested divorce. If both spouses live in the state, the residency requirement is that each spouse must have lived here for at least three months.
If you are filing based on the no-fault ground, you must live separate and apart (without cohabitation) for at least one year before initiating the process. Separate and apart means you are no longer living in a single household under the same roof (not even for one night during the one-year separation period).
If you are filing an uncontested divorce, you can do so without an attorney if you meet the above requirements and:
- You and your spouse are officially married, as in, you have a marriage certificate, and this is not a common law marriage;
- You are not asking for any alimony;
- Neither you nor your spouse are in a mental institution;
- Neither you nor your spouse have been found incompetent by a court;
- Neither spouse is currently deployed.
Although a simple or uncontested divorce seems like an attractive option, it does not happen in most cases. However small, there are usually some disagreements between the spouses that need to be worked out in order to proceed with the divorce. Uncontested divorces tend to work best in cases where the couple was only married for a short period of time, the spouses have no children between them (and there are none on the way), and there are no marital assets or marital debt that need to be divided. Even in those cases, however, there may be issues unknown to parties that need to be addressed. Consulting and/or hiring an experienced family law attorney can reassure you that you know your rights and that all issues are addressed appropriately in an agreement.
Proceed with Caution: You Rarely Get a Second Chance in Family Court
Divorces are usually a lot more complicated than couples originally expect. And when the details are not fully covered, future issues can arise that can be far more costly to rectify after the fact. At the Cate Law Firm, we want to see you do what is best for you. In most cases, this means retaining the services of an experienced family law attorney.
Hiring a lawyer does not mean the process has to cost you an arm and leg, however. Most divorces can be settled without the need for a trial, and this is always our goal. That said, there are times when the other party is not willing to be reasonable and litigation is the only answer. In either case case, we are there by your side to provide strong legal counsel and moral support, and to forcefully advocate for your rights and interests throughout the process.
To schedule a personalized consultation with one of our attorneys, call us today at 864-585-4226. You may also message us online or stop by our Spartanburg office in person at your convenience.
Cate & Brough, P.A.
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