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Where do I file my divorce?

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When you are preparing to file for a divorce most people would like to file it in the county/court most convenient to them, but that is not always proper or allowed. When considering the proper county for filing your divorce you are considering the proper “venue”.  In South Carolina, the proper venue is determined by SC Code §20-3-60.

where to file your south carolina divorce

South Carolina law requires divorce and separate support and maintenance actions to be filed in the county

  1. where the Defendant resides at the time of filing your divorce case;
  2. where the Plaintiff resides if the Defendant lives out of state or if the Defendant cannot be found; or,
  3. where the Plaintiff and Defendant last resided as husband and wife – unless the Plaintiff is not a resident of the State of South Carolina.  In that case the divorce must be filed in the county where the Defendant is living.

So you can see that the Plaintiff cannot necessarily file the divorce in the most convenient forum.  They must follow these rules.  Here are some examples:

  1. Plaintiff and Defendant lived together in Greenville County before they separated.  Plaintiff remains in Greenville County and Defendant moved to Horry County.  Plaintiff may file for the divorce in either Greenville County or Horry County because that satisfies paragraph 1 and 3, above.
  2. Plaintiff and Defendant lived together in Greenville County before they separated.  Plaintiff now resides in North Carolina.  Defendant has moved to Spartanburg County.  Plaintiff must file for the divorce in Spartanburg County since that is where the Defendant is now living.
  3. Plaintiff and Defendant lived together in Greenville County before they separated.  Plaintiff now resides in Greenville County.  Defendant resides in New Mexico.  Plaintiff must file in Greenville County since the Defendant resides out of state.

Do We Have to Separate and if I do, will I lose any rights?

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Question: My spouse is threatening to sue me for abandonment if I leave and telling me that I won’t get anything from the home if I leave the home.  Our marriage is over and I cannot stay there any longer.  Can I leave the home or am I required to stay?  

alf_separated_abandonedAnswer:This is a very common threat in divorce matters.  The fear of the unknown and a lack of understanding of the law keeps people together – even in dangerous or abusive situations.  So, let’s look a little deeper.  Is is okay to leave the home or will you forfeit some rights if you move out?

I’ll start out by saying that the implications of moving out first can be far-reaching so you should definitely consult with a lawyer in your area about the specifics of your case to determine how this may affect you.

In general, South Carolina law requires you to live separate and apart from one another to file for divorce on the grounds of continuous separation for more than one year (the South Carolina no fault divorce ground), desertion, and for separate support and maintenance (similar to a legal separation in other states).  In 2011 the South Carolina Supreme Court clarified this in Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011).    It is possible to file for a divorce based on habitual drunkenness, adultery, and physical abuse while still remaining in the same home.

So, it is possible to file some actions before you separate, but other actions require the separation.  So, when your spouse says that they will file for abandonment if you move out, that is usually a trumped up threat than cannot be backed up.  South Carolina law requires a physical separation in many cases.

Now, can you forfeit rights by moving out?  This is always a risk on a temporary basis.  The issue is usually that you are seeking custody of the children and need to file for the divorce or separation but your spouse refuses to move out.  Sometimes your only option may be to move out so the court has jurisdiction to decide your case.  But, many times the judge may decide that the party who moved out chose not to live in the former marital home and may not allow them to return.  But, this is a temporary decision. In the overall division and apportionment of the marital assets/debts it will not matter which spouse moves out initially.

Without moving out of the home you could attempt to come up with facts sufficient to claim a fault-based divorce ground to keep you from having to move out.  Many times this will lead people to making trumped up claims of fault with no real evidence and make the case more contested and more difficult to resolved by settlement later on.

Like I stated before, the specific facts of your case may make your decision easier to make.  Please consult with a lawyer in your area to find out more.  I would be more than happy to schedule a time for us to discuss your divorce or separation case.

South Carolina Child Custody

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If you are facing a separation/divorce matter or you are aren’t married but have children with someone and you are considering separating you most likely have many questions related to the child custody laws in South Carolina, how things will look when you separate, and what you can expect when it comes to time and […]

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Alimony in South Carolina

Alimony is a hot topic in many South Carolina divorce cases, but many times spouses ask for it in order to punish their spouse for some bad deeds committed during the marriage.  So what is alimony? Alimony is defined as “a substitute for the support which is normally incident to the marital relationship” Lide v. Lide, […]

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