BY MARY JANE FREEMAN
If your spouse is incarcerated in South Carolina, you still can get a divorce under most circumstances. Your divorce will not be much different than it would be from any other spouse. However, the court may take your spouse’s incarceration into account when resolving custody-related matters. If you claim separation as grounds for divorce, your spouse can attempt to stop the divorce by claiming the separation was involuntary due to his imprisonment.
To begin the divorce process in South Carolina, you must be a resident of the state. If you and your spouse both live in South Carolina, you may file for divorce after living in the state for only three months. However, if your spouse does not live in the state due to being incarcerated elsewhere, the time to establish residency is extended to one year. Once residency is met, you must file a divorce petition in family court to begin the divorce process, either in the county where your spouse is incarcerated, where you reside or where you and your spouse last lived as a couple.
After filing the divorce petition, you must serve your spouse with copies of the petition and the summons. Under South Carolina law, your spouse may only be served by the sheriff, his deputy or a person 18 years of age or older. Service may not be made by you or your attorney. With respect to incarcerated spouses, either the county sheriff where the prison is located, the prison director or his designated agent must serve the divorce paperwork. To ensure your spouse is properly served, contact the prison for instructions on any internal procedures you must follow. Once your spouse is served, he has 30 days to respond.
South Carolina recognizes five grounds, or reasons, for divorce. These include one-year separation, adultery, physical cruelty, habitual drunkenness or substance abuse and desertion. Although incarceration is not available as a ground for divorce in South Carolina, you still may obtain a divorce by claiming one of the permissible grounds. The no-fault ground of separation is likely to be the best fit. Unlike the other grounds, you are not required to prove fault on the part of your spouse to obtain a divorce. Instead, you simply need to prove that you and your spouse have lived separate and apart for at least a year without cohabitation. However, the separation must be voluntary. If the separation is due solely to your spouse’s imprisonment rather than a desire to divorce, the court may consider the separation involuntary and deny the divorce. Additionally, your spouse must be aware that you have separated from him with the intent to divorce. If not, he can raise this as a defense.
Divorce proceedings begin once your spouse submits his response to the court. Before the court can issue your divorce decree, it must first resolve all marital issues such as property division, alimony, child support and custody. It is unlikely that the court will find your spouse’s incarceration relevant to most of these issues. However, it will take his prisoner status into account when it comes to awarding custody and visitation rights. This is because courts make custody-related decisions based on what is in the best interest of your child. Since your spouse is incarcerated, the court will likely award you sole custody. When deciding whether to grant your spouse visitation, the court will look at several factors, including your child’s wishes, any history of immoral behavior or domestic violence, your spouse’s character and fitness as a parent and your child’s emotional well-being.