What if you need to file for divorce but your spouse lives in another state?

What if your spouse lives in another state and you need to file for divorce – do you have to file in the state where your spouse lives or can you file your divorce action in South Carolina?

If you do not meet the residency requirements for a SC divorce or if you file in the wrong SC county, your case may be dismissed – resulting in lost time and money when critical issues like child custody, alimony, division of assets, and child support are on the line…

In this article, we will go over the requirements for residency and venue in SC divorce cases, including:

• The residency requirements for a SC divorce,
• The venue requirements for a SC divorce, and
• Your options if you or your spouse live in another state.

RESIDENCY REQUIREMENTS FOR DIVORCE IN SC

SC Code § 20-3-30 lists the residency requirements that you must meet before filing a divorce action in SC:

In order to institute an action for divorce from the bonds of matrimony the plaintiff must have resided in this State at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have so resided in this State for this period; provided, that when both parties are residents of the State when the action is commenced, the plaintiff must have resided in this State only three months prior to commencement of the action. The terms ‘residents’ or ‘resided’ as used in this section as it applies to a plaintiff or defendant stationed in this State on active duty military service means a continuous presence in this State for the period required regardless of intent to permanently remain in South Carolina.

You can only file for divorce in SC if:

• You have lived in SC for at least one year before filing,
• If you live in another state, your spouse has lived in SC for at least one year before filing,
• If both you and your spouse live in SC, you have lived in the state for at least three months before filing, or
• Although not in SC, you or your spouse are active-duty military (or working in government) and SC is your permanent residence.

Hayduk v. Hayduk – Divorce Action Dismissed for Failure to Establish Residency

What happens if your spouse lives in another state, and you live in SC, but you do not prove your residency?

The court will dismiss your divorce action – resulting in lost time, lost money, and potentially permanent consequences resulting from the delay, and you will be forced to re-file your divorce action in the appropriate state and venue (or answer your spouse’s divorce complaint if they have filed in another state).

For example, in Hayduk v. Hayduk, the SC Court of Appeals affirmed the family court’s dismissal of Husband’s divorce action and the court’s award of attorney’s fees to Wife for the expense of defending the divorce action.

Although Husband testified that he lived in Greenville County, SC, Wife and other witnesses testified that he lived in Eden, NC with Wife until less than one year before he filed the divorce action.

Although the testimony was contradictory, the family court noted that Husband had registered to vote and voted in a general election in NC less than one year before filing his divorce action in SC – which would be illegal if his residence was in SC.

The court also noted that Husband’s testimony was not credible because, although he recalled details of other events in the past, he claimed that he had no recollection of voting in NC, and he filed paperwork to cancel his NC voter’s registration only a few weeks before filing the divorce action in SC.

There were issues regarding government employment and military service as well, but the bottom line was 1) he was registered to vote – and voted – in NC during the period of time he claimed to be a SC resident, and 2) his testimony was not credible to the family court.

What if You Don’t Meet the Residency Requirements?

You have two options:

1. Wait until you can prove that you meet SC’s residency requirements, or
2. File for divorce in the state where your spouse lives.

There will always be situations where spouses “race to the courthouse” to be the first to file in their jurisdiction – requiring the courts to determine where jurisdiction and venue are appropriate and potentially resulting in the dismissal of one spouse’s divorce action, but you should seek the advice of an experienced SC divorce lawyer before filing your divorce action to minimize the potential for jurisdiction, residency, and venue issues in your case.

VENUE REQUIREMENTS: WHICH COUNTY DO YOU FILE FOR DIVORCE IN?

There is another residency question you must answer before filing for divorce in SC – which county do you file in?

SC Code § 20-3-60 says:

Actions for divorce from the bonds of matrimony or for separate support and maintenance must be tried in the county (a) in which the defendant resides at the time of the commencement of the action, (b) in which the plaintiff resides if the defendant is a nonresident or after due diligence cannot be found, or (c) in which the parties last resided together as husband and wife unless the plaintiff is a nonresident, in which case it must be brought in the county in which the defendant resides.

If you meet the SC residency requirements, you must file your divorce action in the county:

• Where you live,
• Where your spouse lives if you are a nonresident, or
• Where you and your spouse last lived together as husband and wife.

As with residency, if you file the divorce action in the wrong county, it may be dismissed and you will have the delay and expense of re-filing in the appropriate county – which may be unacceptable if you are asking the court for child custody, child support, alimony, or assistance preventing your spouse from disposing of marital assets.

GOT AXELROD?

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.

Call now at 843-916-9300 or get in touch through our website to talk with a SC divorce attorney today.