Do you need an attorney for a divorce in SC?
In most cases, you cannot get free legal assistance for divorces in SC – it’s not like criminal offenses where you get assigned a public defender if you can’t afford to retain an attorney. Understanding that if you want an experienced divorce lawyer you will have to retain them, you may be wondering if you can just do this on your own.
How hard could it be?
In most cases, you can represent yourself in the family court, it’s just not recommended. Why should you get an attorney for a SC divorce, even if you anticipate a simple, uncontested divorce?
Do I Need an Attorney for an Uncontested Divorce in SC?
What is an uncontested divorce?
Uncontested does not necessarily mean the same as no-fault. In a no-fault divorce, the parties are asking the court for a divorce based on one year’s continuous separation as opposed to asking the court for a divorce based on one of SC’s fault-based grounds for divorce (adultery, physical cruelty, habitual drunkenness, or desertion).
An uncontested divorce means that the parties agree on everything – alimony, child support, child custody, division of assets, and everything can be reduced to writing and signed off on by both sides.
Most no-fault divorces in SC have some issues that are contested, at least in the beginning. In many cases, these issues can then be negotiated and resolved before a contested hearing. If you feel certain that there are no contested issues and you do not want to retain an attorney to help file for your divorce, what could go wrong?
Do I Need an Attorney for a Divorce? You Don’t Get Second Chances…
Why do you need an attorney for your divorce proceedings? Because you don’t know what you don’t know…
Although we can’t provide a comprehensive guide to filing your divorce here, we can point out some of the issues that can and often do arise in pro-se divorce proceedings. These can be categorized under two headings – procedural and substantive.
There are many procedural issues that can affect your divorce proceedings – some are common and foreseeable, while others are case-specific. These include:
- How specific is the information must be included in your divorce Complaint,
- Drafting and filing a Summons along with the Complaint,
- Properly serving the other side with the Summons and Complaint,
- Complying with the deadlines for filing and serving the Summons and Complaint,
- Filing your Complaint in the proper venue, and knowing what to do if your Complaint was not filed in the proper venue,
- Complying with the deadlines for filing and serving the Answer or Reply,
- Knowing when discovery is necessary to protect your rights and ensure that you are not being misled,
- Knowing how to get the discovery material that you need,
- Knowing when to respond to discovery requests from the other side and what information may be protected,
- Knowing what motions should be filed, what information to include in the motions, how to file them, and how to get a motion hearing scheduled before your final hearing date,
- Knowing how to request an emergency or expedited hearing when necessary (and when not to ask for one),
- Knowing when you are required to participate in mandatory mediation and how to avoid mediation (and the costs of mediation) if all issues have been resolved, and
- Knowing courtroom procedure – including what to say, what to ask for, and how to respond to questions or demands from the court.
Procedurally, there are both claims (things you can ask for that you are entitled to) and defenses that must be included in your pleadings or you may be waiving your right to them.
Substantively, you will need to know the facts that you must establish to get your divorce. Whether you are asking for a divorce on fault grounds or based on one year’s continuous separation, you must 1) include the grounds in your pleadings and then 2) prove the grounds for divorce at your final divorce hearing – even if the divorce is uncontested and even if it is a no-fault divorce.
What types of evidence do you need to collect? How do you present the evidence in court? When do you need live witnesses and when do you need affidavits from your witnesses?
You don’t know what you don’t know – there may be issues that you have not considered, property that you did not realize you were entitled to, property that you did not realize existed, or alimony that you did not realize you were eligible for.
This becomes especially critical if there are children involved in your divorce – you also need to know what your rights are when it comes to child custody, visitation, and child support payments.
If your divorce is dismissed before it is finalized, you will have to start the process over. If your divorce is finalized and you have waived important rights that you did not realize you had, you do not get a second chance and divorce decrees are rarely re-opened unless there was some type of fraud on the court.
But I Don’t Want to Pay Attorney Fees…
You can file for divorce pro-se (without an attorney) if you are “officially” married (not a common-law marriage), you are not asking the court for alimony, you and your spouse are not in a mental institution and have not been declared incompetent by the court, and neither spouse is currently deployed with the military.
If you have contested issues in your case, substantial assets involved, or children involved, you should file for divorce with the advice and assistance of an experienced attorney who can ensure that your case is filed correctly, handled correctly, and you are not waiving important rights (or leaving money on the table).
If you don’t think you have any contested issues in your case, there are no assets involved, and there are no children involved, you should still consider consulting with an experienced divorce attorney before attempting to handle it on your own.
A truly non-contested divorce, although rare, will cost significantly less than a contested divorce and you will have the peace of mind of knowing that 1) your case has been filed correctly, 2) you are not waiving important rights that you were unaware of, and 3) you have an experienced advocate on your side if unexpected issues arise in your case.
If you are considering separation or divorce, talk to your Myrtle Beach divorce attorney on the Axelrod team as soon as possible. Whether you have a simple, no-fault divorce with no contested issues or a complex separation involving children, assets, and multiple businesses, we will help you to protect your assets, your children, and your rights during the divorce process.