How soon can one get a divorce after filing?

Posted Monday, September 14th, 2015 by Gregory Forman
Filed under Divorce and Marriage, Of Interest to Family Court Litigants, Of Interest to General Public, South Carolina Specific

Folks who have filed for divorce often wonder why it takes so long for them to get divorced. S.C. Code § 20-3-80 sets “Required delays before reference and final decree.” It requires that hearings on a divorce based on physical cruelty, adultery or habitual intoxication not take place until two months after the date the divorce action was filed and that a divorce not be granted (filed with the clerk’s office) until three months after filing. The rationale behind this requirement is to give the aggrieved spouse a “cooling off” period to consider whether he or she really wants to end the marriage.

For divorces on the grounds of one year’s continuous separation or one year’s desertion both the divorce hearing and the filing of the decree can take place as soon as the responsive pleadings have been filed or after the respondent has been adjudged to be in default. If the parties cooperate and find a willing judge, such divorces can be granted on the day of filing.

However the court will typically not allow a hearing on a request for divorce until the parties have resolved all issues stemming from the dissolution of the marriage, specifically spousal support and equitable distribution of marital property and debt. In cases where the parties have minor children together, or in which the wife is pregnant at the time of filing, the court will want issues regarding the child(ren)’s custody, visitation and support resolved before it grants the divorce. If the parties cannot reach an agreement, then they will not have their divorce hearing until trial.

The court can bifurcate the case to grant the divorce before the parties resolve their remaining issues. In practice this is rarely done. The court’s thinking is that by not allowing the divorce to go forward until the parties have a full agreement or are ready for trial, it encourages the parties to resolve issues stemming from the dissolution of their marriage. I have heard of the court allowing it to allow a wife to remarry and legitimate a child who is not the husband’s child. In my own experience the court allowed it once when trial was delayed due to an opposing counsel’s acute medical problem.

Before May 9, 2006, cases that were not resolved could be left in a legal limbo, with the cases struck from the active roster and not dismissed. Thus, prohibiting bifurcation was a method of discouraging parties from leaving their cases unresolved. Since May 9, 2006 cases that are not resolved within 365 days are subject to dismissal. The ability of parties to leave their dispute unresolved if granted the divorce is greatly reduced under this new system. However the family court judges do not seem to be reconsidering their standard opposition to bifurcation.

Thus, cooperative parties can get a divorce within 90 days of filing if based on typical fault grounds, and as soon as possible if based on one year’s continuous separation grounds. However, parties who cannot reach an agreement on all issues stemming from the dissolution of their marriage need to wait for trial to get divorced.

3 thoughts on How soon can one get a divorce after filing?

  1. Greg, the problem with bifurcating a divorce is that until all issues are resolved, it is only an interlocutory order. See Bolding v. Bolding and how it helped me achieve a successful result in Sexton v. Sexton which held that a “final order” issues a year earlier was only an interlocutory order.

  2. One can have more than one final order in a case. I would think S.C. Code §§ 14-3-330 and 14-8-200 have overruled Bolding v. Bolding, 283 S.C. 501, 323 S.E.2d 535 (Ct. App. 1984).

    Further, the court only bifurcates divorces by consent. Nobody is going to appeal a divorce that was consented to.

  3. MJ Goodwin says:

    I was just counseling someone yesterday that if there are any issues left unresolved, it is not an uncontested divorce, no matter how much they both want to be divorced!

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