Oftentimes, our divorce lawyers in Charleston deal with cases where both spouses have lived in South Carolina for years. In these family court cases, it’s clear that South Carolina is the proper state for filing the divorce. However, sometimes the other spouse lives in another state. In these cases, it’s important to understand the laws that determine whether the divorce should be filed in South Carolina or whether the divorce must take place in another state. In this article, our family court lawyers explain South Carolina’s jurisdictional laws and whether you can file for your divorce in South Carolina (jurisdiction) and where in South Carolina you can file for divorce (venue).
Can I Get a Divorce in South Carolina if My Spouse Lives in Another State?
If you’ve resided in South Carolina for one year, then you can file for divorce in South Carolina. However, if the defendant (meaning the spouse who didn’t file the case) has never lived here, South Carolina may not have jurisdiction over that person for purposes of dividing the assets or awarding alimony.
Can I Get a Divorce in South Carolina if I Live in Another State?
If you live out of state, but your spouse has lived in South Carolina for more than one year, then the you can file for a divorce in South Carolina, and the court has jurisdiction for divorce, alimony, and equitable division of the assets and debts.
Can I Get a Divorce in South Carolina if My Spouse and I Just Moved Here?
If both spouses live in South Carolina, then they only need to have both lived here for 3 months before South Carolina family courts will take jurisdiction.
What if My Spouse is Active Military?
In cases where a spouse is in the active military, then it only matters that a continuous presence was kept in South Carolina for the 1-year or 3-month time period, regardless of whether the military spouse intended to permanently reside in South Carolina.
In Which County in South Carolina Should I File for a Divorce?
If South Carolina is the right state for the case, then you might still need to figure out which county to file the case in. To file a case for divorce or to address the financial issues, the case must be filed according to these rules:
- The case can ALWAYS be filed in the county where the couple last lived together as husband and wife UNLESS the plaintiff (the person seeking the divorce) no longer lives in South Carolina.
- The case can be filed in the county where the defendant lives at the time of filing. So, if you live in Charleston, but your spouse lives in Dorchester, then you either have to file in Dorchester or hope that your spouse files in Charleston. You can’t force the case to be in Charleston UNLESS that is where you last lived together as husband and wife (see rule #1).
- If the defendant does not live in South Carolina when the case is filed (or if the defendant can’t be found after a diligent search), then the plaintiff has to file in the county where the plaintiff resides.
- If the plaintiff does not live in South Carolina at the time of filing, then it MUST be filed in the county where the defendant lives.
Custody of Children
What can sometimes complicate the matter is when the kids live in a state different from the state that has jurisdiction over the defendant. For example, say a couple lived in South Carolina for several years, and then the mother moves to Georgia with the kids. If no case is filed for 6 months, then Georgia might become the “home state” for the children. This means that Georgia would have jurisdiction over the custody of the kids while South Carolina would have jurisdiction to divide the marital home and other assets that are in South Carolina. This means it’s possible that 2 different cases would be filed to handle all of the issues that need to be addressed. Sometimes this is corrected by the spouses simply agreeing on which state, subject to that state’s jurisdictional laws. Other situations can be more complicated. It’s important to decide which state is best for you in the beginning, and you should consult with a family court lawyer to help determine the best course.
Why Does It Matter Where I File for a Divorce?
Which state the divorce happens in can affect the outcome of the case. First, if you are divorcing, and you live South Carolina while your spouse lives somewhere else, you may prefer to have the family court case filed in South Carolina simply for your own convenience. Sometimes, it makes more sense to file the case where the majority of the witnesses are located so if depositions need to be taken or if the witnesses are needed for trial, the court has subpoena power over the witnesses.
Sometimes it is more advantageous to file in a particular state because of that state’s laws. For example, South Carolina has more liberal alimony laws than a lot of other states. So, if you are seeking alimony, you might prefer to have the case here. On the other hand, if you are the spouse who might be paying alimony, you might prefer a state like Texas where alimony is a lot more difficult to receive. Also, South Carolina requires a one-year separation before divorcing a couple when there is no fault-based ground such as adultery or physical abuse. You may prefer to file in another state that has a shorter waiting period.
Because the place where the case happens can have an impact on the outcome of your case and on the attorney’s fees and costs to get through it, you’ll probably want to get the answer to this question early. Contact the lawyers at Futeral & Nelson to schedule a consultation and see where you stand.