We've been separated for a year, and my spouse has moved to another state - where do we file for divorce?
What if I moved to another state but my spouse still lives in SC? Can I file for divorce in my state or do I have to come back to South Carolina?
When spouses move out of state, it can complicate the questions of jurisdiction and venue for divorce proceedings or child custody actions - if you file a divorce action in the wrong state or county, it can delay the proceedings, your case may be get dismissed, and you will have to re-file in the proper location.
Below, we'll look at some of the more common scenarios and how they are resolved.
What are the Rules for Divorces When the Spouses Live in Separate States?
You may have the option of filing for divorce in either the state you live in or the state your spouse lives in, depending on your circumstances.
You Can File for Divorce in the State You Live In
SC Code Section 20-3-30 says that you, as the "plaintiff," or the person who is suing for divorce, can file the divorce action in South Carolina if you have lived here for at least one year.
For example, if your spouse picked up and moved to another state, but you remained in South Carolina, you can still file for divorce in South Carolina and your spouse will have to return for the divorce proceedings.
On the other hand, if you picked up and moved to another state, you may or not be able to file for divorce in your new home state depending on the laws of that state and how long you've lived there.
But, if you moved to South Carolina from another state, you can still file the divorce action in SC if you have lived here for at least one year.
You Can File for Divorce in the State Your Spouse Lives In
Section 20-3-30 also says that, if you live in another state, you can file for divorce in South Carolina if your spouse has lived in SC for at least one year.
What if both you and your spouse have moved to South Carolina from another state?
If both you and your spouse live in South Carolina, you can file for divorce after you have lived here for at least three months.
What if I Don't Know Where My Spouse Is?
In most cases, if your spouse lives out of state and we file a divorce action in South Carolina, we will make personal service of the divorce proceedings on your spouse in the state where they live. But, what happens when you don't know they are and can't find them?
SC Code Section 20-3-70 says that, when you do not know your spouse's location and we can't find them after "due diligence," the Court will allow you to make "service by publication." The procedure and requirements for service by publication can be found in SC Code Section 15-9-710-740.
Which County Should I File for Divorce In (Venue)?
If SC courts have jurisdiction over your divorce case, then you must decide which county you should file your case in.
Venue for divorces in SC is proper in:
- The county that the defendant lives in;
- If the defendant does not live in SC, the county that the plaintiff lives in; or
- If both you and your spouse live in SC, you can file in the county where you both last lived together as husband and wife.
If your spouse still lives in SC, you must file in either the county your spouse (the defendant) lives in or the county where you both last lived as husband and wife.
But, if your spouse (the defendant) does not live in SC, you must file in the county where you live currently.
Why Does it Matter Where I File the Divorce Action?
If you have a choice of jurisdictions, the location you choose can make a difference because:
- The law of one state may be more favorable for you;
- You may want to file the divorce action in the location that is most easily accessible for your witnesses;
- Some jurisdictions may allow you to complete the divorce proceedings more quickly than others; and
- There may be additional requirements for jurisdiction and venue if child custody, visitation, and child support are at issue.
What are the Rules for Military Divorces?
If either you or your spouse is in the military, there are special rules that will apply that can affect the proceedings.
Where Do I File for Divorce if My Spouse is in the Military?
For example, if your spouse is an active duty servicemember, you can file the divorce proceedings in South Carolina if this is their home state, or you may be able to file the divorce proceedings in the state where they are currently deployed if that state's laws permit it.
If your spouse is active duty military stationed in South Carolina, you can file for divorce in South Carolina if your spouse has lived here for at least one year (or three months if both of you live in SC).
SC Code Section 20-3-30 says that it does not matter if a service member intends to remain in SC as a resident - they will be considered a resident for purposes of jurisdiction over your divorce proceedings if they have lived here for the minimum time requirements.
Where Do I File for Divorce if I am in the Military?
If you are on active duty military stationed in South Carolina, and your spouse lives in another state, you can file the divorce action in SC if you have lived here for at least one year, regardless of whether you intend to remain in SC permanently.
If you are stationed in SC, you may also have the option of filing the divorce action in your home state or the state where your spouse lives, depending on the laws of that state.
Will My Divorce Be Delayed if My Spouse Is in the Military?
Although a service member can consent to go forward with their divorce proceedings, the Service Members Civil Relief Act allows a person who is active-duty military to delay divorce proceedings until 60 days after their active duty is complete.
If you are considering filing divorce proceedings and you or your spouse has moved to another state, the first step may be determining which state and county to file your case in. Your Myrtle Beach divorce attorney at Axelrod and Associates will help you to decide where you can file your divorce action and where you should file your divorce action based on which jurisdiction will be more favorable for your case.