A contested divorce means there are absolutely no issues that are contested, such as debts, assets, alimony, custody of the children (if there are children) child support, etc. If there is any issue at that is in dispute then the divorce is considered contested. If it is truly an uncontested divorce then the procedures are quite different and there is a substantial difference in attorney fees.
Procedure for contested: A complaint and summons must be filed and served. If the divorce is contested then generally there is motion for a temporary hearing filed and a temporary hearing is scheduled and affidavits and other documents are submitted. Thereafter, a judge will make a ruling on the temporary issues. Discovery (interrogatories, requests for production, depositions) comes next (if needed). At any time throughout this process the parties can settle on all of the issues. If there is a settlement on all issues then a 15 minute hearing will be scheduled and the parties will testify as to the agreement. Thereafter, it becomes a final court order. If there isn't any settlement then mediation is scheduled. Many cases have been settled in this process. If there is not a settlement after the mediation then the case will be scheduled for a trial.
Procedure for uncontested: File a complaint and summons and serve the other spouse the documents. You must wait 30 days for the spouse to answer the pleadings (this may be waived by the spouse) then a hearing is scheduled for testimony and generally a divorce decree is issued.
South Carolina Code Laws Section 20-1-530 states that a court can declare a marriage invalid if the marriage "has not been consummated by the cohabitation of the parties." In practical terms this means that an annulment may be granted if the married couple did not have sexual relations and did not continue to live together, despite having gone through a marriage ceremony. One honeymoon night or a short time living together would seem to preclude an annulment in South Carolina.
Time Frame to File
Our laws does not specify any time limits for obtaining an annulment--that is, there is no statute of limitations on annulment. The reason for this is that the marriage is invalid and the passage of time will not confer validity.
When an annulment is granted, no valid marriage ever existed; both spouses were never legally married to each other. In South Carolina, however, the judge can still decide issues like custody, visitation, child support, alimony, and property division.
A marriage can still be annulled if children were born during the marriage and are legitimate as long as at least one parent entered into the marriage in good faith and did not know the marriage should be invalid. A legitimate child has the right to be financially supported by both parents and can also inherit from either parent.
Unfortunately, the conditions under which you may seek out an annulment of marriage in South Carolina are very limited under the law.
Other conditions a marriage can be annulled are the following: marriage can be annulled if one or both parties lacked the capacity to marry. Marriages between persons too closely related to legally marry (See S.C. Code § 20-1-10) are void and subject to annulment. Marriages involving mentally incompetent persons can be annulled. Id. However someone must first be adjudicated incompetent before being denied the right to marry. S.C. Code § 44-22-80. Failure to meet age requirements (S.C. Code § 20-1-100) renders a marriage void. And obviously if one party to a marriage is already married to someone else at the time of the wedding (i.e., a bigamous marriage), this is grounds for an annulment. S.C. Code § 20-1-80.
If a spouse gets caught in adultery, that spouse is “barred” (permanently prevented) from receiving alimony from the other spouse. The only exceptions to this rule are (1) if the parties have already formally signed a written property or marital settlement agreement and (2) if the court has issued a permanent order of separate support and maintenance or approved a property or marital settlement agreement between the parties. So, if the parties are merely separated but planning on getting divorced, the spouse seeking alimony can bar him or herself from receiving alimony if he or she engages in a romantic relationship with another person. I advise my clients to hold off on dating until the case is resolved, and I also caution them not to put themselves in a situation where an innocent “friendly” relationship could be construed the wrong way.
Effect on the Equitable Division of Martial Debts and Assets
The family court must divide the marital assets and debts in a divorce. South Carolina law gives a list of factors for the judge to consider when making this division. One of the factors is the “marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage.” Adultery counts as “marital misconduct or fault.” So, a party guilty of adultery may have his or her share of the marital estate reduced because of the adultery. It’s important to remember that “marital misconduct or fault” is only one factor of the 13 factors for the court to consider. In some cases, the adultery matters a lot and in other divorces if does not make much difference.
I am often asked what effect, if any, a parent’s adultery will have in determining custody. The law in South Carolina is that, unless the parent’s sexual misconduct reaches the level of flagrant promiscuity, the sexual misconduct is not in and of itself regarded as harmful to the child. If, however, the child is exposed to the misconduct and it can be shown that the conduct is having a harmful effect on the child, then the court will consider the effects.
Case law has not defined what constitutes “flagrant promiscuity.”
In 1988, South Carolina appellate courts addressed, for the first time, the effect of a parent’s promiscuity in a custody dispute in Boykin v. Boykin. This case involved a post-divorce change in custody, the mother had had sexual relations with at least five men in less than a year. The testimony indicated that the mother was accustomed to partying to the early morning hours, drinking beer, and smoking marijuana. The court held that flagrant promiscuity would inevitably affect the welfare of a child. Thus, the Court of Appeals reversed the lower court and gave custody to the father.