Do I Have to Be Separated for One Year to Get a Divorce?

I know a lot of the talk on this blog is about uncontested divorces and I talk about how you have to be separated for more than one year before you can file for divorce.  But that is not always the case.

If you are filing for a no-fault, uncontested divorce, I’m sorry but you have to wait the full year out before you can file for divorce.

But, if you are filing based on a fault based ground for divorce you do not have to be separated for more than one year.  You just need to be separated.  The fault based grounds for divorce in South Carolina are adultery, physical abuse, and habitual drunkeness and drug use.  If you are filing for divorce on any of those grounds you can file immediately.  However, when you file based on a fault-based ground you must wait at least 90 days from the time you file your action before you can request a final hearing.

Comments

  1. how can i get a divorce without being separated one year? me and my wife just want a simple divorce. there is no adultery or anything, we just do not want to be married to each other anymore. we do not want to have to be separated one year. is there any way of getting around the separation?

    • Hi Jason,

      Thanks so much for your question. Unfortunately, I have bad news. Without having a fault-based ground for your divorce (physical cruelty, habitual drunkenness or drug use, adultery, or abandonment) there is no way to get a divorce without having the one-year period of living separate and apart continuously.

      DISCLAIMER: I need to do my ethical duty as an attorney and let you know that this blog is meant to provide general legal information and not specific advice or information for your particular situation. Before relying on any information from this site, you should consult a competent attorney to discuss the specifics of your case.

  2. I am trying to obtain a divorce based on my husbands habitual drunkenness. I cannot find any information on how to file this way. All the information and forms are based on a 1 year continuous separation. Please help me know how to file a fault based divorce!

    • Hi Melina,

      I suspect the reason why there are no “forms” available online is due to added complexity of proving habitual drunkenness as a ground for divorce. The paperwork for filing the divorce on the no-fault ground is pretty straight-forward, but does not differ substantially when it comes to the divorce grounds unless there are other issues involved. If there are additional issues in the case (child custody, child support, property/debt division. alimony) then I would encourage you to speak with a lawyer to make sure all of the issues are taken care of and so you won’t have any problems getting the divorce approved by a judge.

  3. I would like to divorce my husband on grounds of adultery, I have proof of him admitting such as well as pictures, phone records ect. is there any way around the year long separation process with such evidence?

    • Hi Danielle,

      The one year separation only applies when you are seeking a divorce on the no fault divorce ground of being separated for more than one year without cohabitation. If you can prove adultery, a divorce could be obtained in as little as 90 days depending on the other issues that remain.

    • Anonymous says:

      Sometimes depending on issues involved such as mental illness and if mental and emotional abuse is a factor your case may be more complex and if you have not used a PI I would ask the question why anyone would be taking pictures.

  4. Hello, I have been seperated from my husband from March 5th 2010. We have not signed any papers, we have them drawn up, but, not signed. When a year comes around – March 2011 or so, can we still file for a divorce even if we had not signed the intial seperation papers?

    • Hi Lucy,

      You do not have to do anything formal like signing separation papers to begin the one year separation. The “clock” will start the day that you and your husband begin living in separate residences (not just in separate bedrooms or parts of the same house).

      Thanks for checking out the site!

      Tripp

  5. Tripp, thank you for your response. Yes, we are seperated, we can prove it :)… with lease agreements and witness etc. The issue was that he was refusing to sign the papers. One last question, so, the details of the seperation agreement, are not binding since it was not signed? There is nothing major in the agreement, but, my question is, can he hold me to anything that is in there……. ?

    Thanks again!

    Lucy

    • Hi Lucy,

      Once you file for divorce, you just need to get him served. After that, if he continues to refuse to work through the divorce process many times you can move on without him when he goes into default.

      As to your other question, neither of you can hold the other to the separation agreement since it was not signed.

      Thanks,

      Tripp

  6. To get a divorce from my husband on the grounds of habitual drunkenness, what prove to I need to have? He has been arrested for a DUI/ DUS and drinks a lot daily and has been admitted to the hospital for “accidental” overdose.

    • Hi Natalie,

      Generally, you must prove that your spouse has a fixed an continuous drinking habit and that this has caused the break up of your marriage. All of the proof you describe would be used along with witness testimony of people who have seen him consistently in his drunken state. I’ll try to do a more detailed post on this soon.

      Tripp

      This blog is meant to provide general legal information and not specific advice or information for your particular situation. Before relying on any legal advice from this site, you should consult a competent attorney to discuss the specifics of your case.

  7. Hi, I have independent corroboration and proof that my wife committed adultery. She also admits it. We have worked out all terms and intend to go uncontested. We have been living separately for 4 months now, but have yet to file. Does the 90 day waiting period start when we file or did it start when we began living separately? Thanks!

    • Hi Bryan,
      Thanks for your question. The 90 day period starts the date of filing. So that means once you file for divorce you will have to wait an additional 90 days before a final hearing can be scheduled.

      Thanks,

      Tripp

  8. A question on divorce. My wife admitted an affair while out of state in NJ. She continues to have a relationship by text and email. I would like to get divorced due to her adultery. I have photos of some of her texts and she admits the affair. What type of witness do I need to “prove” her affair or or the images enough? Is a local friend who knows our details enough. Thanks chris

  9. what do you really need to prove that your other half cheated to get a separtion or even a divorce? i dont have pictures and he is a liar told me but i kno wont admit it in court. what should i do

  10. Schimanya says:

    What options do you have if your spouse won’t leave and you can’t afford to move out? I also can’t afford a private investigator to get proof of adultery.

  11. I have been separated for 2 years, so mine is cut and dry, no fault. However, 5 years ago, my boyfriends wife, put him out of his home, and a week before he left, she moved another man in. She told him that she didn’t love him, and was in love with this other man. He doesn’t want anything from the marriage, has even given her the home. He just wants out. She refuses to even discuss divorce, as she feels he should take care of her for life. Now, her boyfriend does not work, and she is on disability. What can he do to get out of this marriage, without a fight. Again he wants nothing, except to put his car in his name. it is currently in hers.

  12. I’ve been separated for over a year now and we had agreed to be civil and let each other know before contacting lawyers. Much to my surprise I was served with papers Tuesday. She is claiming habitual drunkenness as the grounds for divorce. I have had documented addiction issues in the past including a visit to rehab. She also demanded that I take home drug tests before I could see my kids. Not knowing what to do I agreed and ended up failing one of her homemade tests. She brings this up in the papers. My ex has never provided any financial support to the marriage. She has kept a tax prep job for about a month, that it during the entire marriage. I’ve also supported my new apartment as well as the apartment my ex and 2 children live in. I’ve paid her auto insurance the entire time and all medical insurance and doctors visits. I’ve kept a steady job for the entire life of both children. I have no criminal charges or any charges relating to drugs or alcohol.
    OK, here’s my question:
    If we’ve been separated for over a year. What are the chances I can I get a no-fault divorce instead of a habitual drunkenness fault divorce.

    • Hi Rob,
      Thanks for your comment. I’m sorry to hear about what you are facing. Each of you have a right to file for the divorce on the grounds that you desire, but you are left with a burden of proof to prove all of the necessary elements of your divorce grounds. The one year separation is the easiest way to get a divorce in South Carolina. The bottom line comes down to her being able to prove the elements and the remaining issues in the case that may be impacted by a fault-based divorce.

  13. Hi, I am disabled on workers comp and can’t afford to rent another place for a year, or pay a lawyer. i take pain meds for my injuries and don’t know what to do… what are my options? also, we’ve been married 3 times over 10 years (stupid i know) but only 2 years in this state…what do i do? thanks

  14. Me and my husband got married Dec10.2011 but have never lived in the same house does that count as sepertion.

  15. I married my husband in February, knowing that I didn’t want to go through with it. I even informed him of this. When I did, his mother and father called me harassing me and even threatened my life if I did not go through with it. I went through with it, even my husband knows that I didn’t want to and we shouldn’t have gone through with it. My question is, can I file for divorce right away or do I still need to wait one year after in order to do so?

    • Hi Chrissy,

      In order to get a divorce you will need to be able to meet the requirements of one of the five grounds for divorce in South Carolina. The “no fault” ground is based on you and your husband living apart for more than one year continuously. The other grounds are adultery, abandonment, physical abuse, and habitual drunkenness. If you do not have proof for a fault-based ground for divorce you will have to wait the until the year has passed to file for divorce.

      You can file for separate support and maintenance which is similar to a legal separation if there are immediately needs such as support or property division that need to be taken care of.

      Tripp

  16. I have read through all the posts here and haven’t found what I’m looking for. So I informed my husband May 2011 I wanted a divorce. He said he would leave just give him until January 2012. I did he still didn’t leave so June 2012 I moved out and admit that I am dating someone. I am planning a trip outof state with our daughter and he says that I can’t take her if he says no and that he will have me arrested. I told him that he can try but since there is no curt documentation that he has no legal grounds. I am willing to get something noterized saying that I am bringing her back ina week. I just want to make sure that I am right in this matter before I leave.

  17. My husband is cheating right now he lives with the other woman. I have proof.

  18. I have been separated/not living with my wife for 3 years this March. She has been living, jobless, with her parents since then while I remain in our house. We also have a 4 year old son that we split time with every other day and have done good about agreeing on things involving him. I have small amounts of proof that she committed adultery. (Hotel receipts, Phone records, etc) Do we have to legally file for separation and be legally separated for a year? If we can agree on things, such as child custody, can our divorce be taken care through a mediator? Thank you for your help!

  19. My spouse is a drunk.lost our business. Owe the govt $100k from gambling business profits instead of paying IRS.LIEN on our home. I receive no money.just got evicted. He gambled our Medical ins.premium away this month.I don’t have gainful employment thus far..I am 57-very hard ..I have $240K of gambling receipts. He just got fired. Has a DUI. Crashed his truck..My home was burglarized by fellow bar drunks.
    We did make $620k yrly. He just got out of rehab & drank 1st day home. I left Aug 2013. He didn’t even show for 1st court date. HELP.

  20. Anonymous says:

    My issue is a bit tricky. I committed aldultery, tried to reconcile, but my husband wants a divorce but I don’t. I don’t want to suffer the year separation for a no-fault, and if he wants to go through with it, I just want to get it over with and begin to heal. Could he file at fault and is complete admittance proof enough? I’m so confused about all of this but I just want to get it over with.

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  22. My husband and I married when I was Active Duty in the military. He moved to the state I was stationed at and we got married. I got out of the military this year and moved to the state he is from. I was there for two months before I left and moved to my home state. I kept my home state (SC) driver license and paid taxes to my home state as well while in the Military. When I moved to where my husband is from, I never got a driver license or registered my car there. Since I am now back in SC and I have proof of my husband cheating with more than one woman, drug abuse and mental problems, can I immediately file for divorce?

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