Hello and thank you for your question.
The South Carolina statute is clear: to qualify for a divorce in your
circumstance you must live "separate and apart" for a year, and you
must be residents of South Carolina when you apply to the court.
SECTION 20-3-10. Grounds for divorce.
http://www.lpitr.state.sc.us/code/t20c003.htm
"No divorce from the bonds of matrimony shall be granted except upon
one or more of the following grounds, to wit:
(1) Adultery;
(2) Desertion for a period of one year;
(3) Physical cruelty;
(4) Habitual drunkenness; provided, that this ground shall be
construed to include habitual drunkenness caused by the use of any
narcotic drug; or
(5) On the application of either party if and when the husband and
wife have lived separate and apart without cohabitation for a period
of one year. A plea of res judicata or of recrimination with respect
to any other provision of this section shall not be a bar to either
party obtaining a divorce on this ground."
Assuming that grounds (1) through (4) do not apply (and the court is
required to deny divorce to parties who collude with each other) then
separation is required.
There is also a 3-month or one year residency requirement:
SECTION 20-3-30. Residence requirement
Id.
"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."
But I am concerned that you might not satisfy the residency
requirement even if you do live apartfor the year. "Residency" is a
funny thing in the law of the states. Sometimes it means domicile - -
an intention to make the state your permanent home. Clearly given
your visa status the two of you will never be domiciled in South
Carolina, so if that is what 'residency' means you will not qualify
for the divorce court jurisdiction even if you do live apart. For
example, that is why you cannot qualify for the specially reduced
tuition that the state university grants to residents/domiciliaries:
North Carolina Residency
http://www.bioweb.uncc.edu/Masters/RESIDENCY.htm
"Under North Carolina law, to qualify for in-state tuition for a given
term, you must prove that you established your domicile in NC and
maintained it for 12 continuous months with respect to the beginning
of the term at issue (see in-state residency). To prove that you have
established a bona fide domicile in NC, you must prove the following:
That you were physically present in the state,
That you intend to make NC a permanent home indefinitely,
That you were not in NC solely to attend college (explain this clearly
when completing the application for residency)."
The last sentence of the divorce statute that I cited above makes me
think you might have trouble qualifying as residents for purposes of
divorce even if you do live apart within the state for a year. Take
another look at that sentence:
"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."
This creates what the law calls a 'negative implication.' That is, it
implies that if that sentence were not in the statute, a US soldier
living at a South Carolina military base even for a whole year would
not be able to get a South Carolina divorce because his or her
physical presence in the state would fall short of "residency."
So the negative implication is that since there is no similar
exception for alien visa-holders, they might not qualify as residents
no matter how long they live in the state.
This leads to the question of whether you need an attorney - - it is
always a good idea to have an attorney but if you did satisfy the
separation and residency requirement, you wouldn't necessarily need an
attorney.
The forms look pretty simple (I cite the following form in full
because I believe it to be in the public domain):
COMPLAINT FOR DIVORCE
http://www.ilrg.com/forms/divorce-nc/us/sc
COMPLAINT FOR DIVORCE
STATE OF SOUTH CAROLINA, THE ___________________ COURT OF THE
_________________ JUDICIAL CIRCUIT
In re: the Marriage of
_______________________________
Plaintiff
and
_______________________________
Defendant )
)
)
)
)
)
)
)
)
_______________________________
Docket No.
The Plaintiff, _______________________________, respectfully declares
the following:
1. Plaintiff's Residence: Plaintiff resides at
____________________________________________________________________
[insert Plaintiff's address] and has been a resident of the State of
South Carolina for _________ [insert period of residence in months and
years].
2. Defendant's Residence: Defendant resides at
____________________________________________________________________
[insert Defendant's address] and has been a resident of the State of
South Carolina for _________ [insert period of residence in months and
years].
3. Marriage: On ______________________, 20____, in
__________________ (city), __________________ (county),
__________________ (state), the Plaintiff and Defendant married. An
official copy of the marriage license is attached to this COMPLAINT
FOR DIVORCE.
4. Jurisdiction: This Court is that of proper jurisdiction to hear
this cause. The Defendant has agreed to file an Affidavit of Consent
in this cause. Neither the Plaintiff or Defendant has been involved
in any litigation or other proceeding involving the other party in
this or any other jurisdiction with respect to their marriage or any
other domestic matter.
5. Grounds for No-Fault: Plaintiff wishes a dissolution of marriage
with Defendant based on the following grounds:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
[Note: This paragraph must describe sufficient legal basis for divorce
as recognized by the laws of the State of South Carolina. Sufficient
basis for a no-fault divorce within South Carolina is limited to the
following: Living separate and apart without cohabitation for one
year.
6. Marital Settlement Agreement: Plaintiff and Defendant ___________
have (copy attached) ___________ have not entered into a Marital
Settlement Agreement.
7. Other Declarations:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
NOW, THEREFORE, Plaintiff requests that the court order a DECREE OF
DIVORCE and such further relief as Plaintiff may have requested
herein.
Verification
I, ______________________________________________[name of Petitioner],
affirm under penalty of perjury that I am the Petitioner in the
foregoing COMPLAINT FOR DIVORCE and that all statements in this
Petition are accurate to the best of my knowledge. I have filed this
Complaint in good faith and have not colluded with anyone in relation
to it.
_____________________________________________ _________________
Petitioner's Signature Date
_____________________________________________
Petitioner's Address, Line 1
_____________________________________________
Petitioner's Address, Line 2
Subscribed and sworn to before me on this ____ day of
__________________, 20_____.
__________________________________
Notary
----------------------------------
AFFIDAVIT OF CONSENT
STATE OF SOUTH CAROLINA, THE ___________________ COURT OF THE
_________________ JUDICIAL CIRCUIT
In re: the Marriage of
_______________________________
Plaintiff
and
_______________________________
Defendant )
)
)
)
)
)
)
)
)
_______________________________
Docket No.
1. A COMPLAINT FOR DIVORCE was filed between Plaintiff and Defendant
on the _________ day of __________________, 20____.
2. The marriage between Plaintiff and Defendant is irretrievably
broken and efforts at reconciliation have failed.
3. I, _______________________________, have received a copy of the
COMPLAINT FOR DIVORCE, and I have read it thoroughly and understand
it. I do not wish to contest this proceeding. I do not object to the
declarations made in the COMPLAINT FOR DIVORCE. I do hereby consent to
the relief requested in therein and to the entry of a DECREE OF
DIVORCE dissolving and forever terminating the marriage between
Plaintiff and Defendant. I consent that the court may hear this cause
on any day convenient to the court without further notice to me. I
further consent that the court may enter any order granting any and
all the relief sought in the COMPLAINT FOR DIVORCE.
4. I waive any and all rights I may have to a motion for a new trial,
a record testimony, findings of fact and conclusions of law, notice of
trial, a notice of entry of a DECREE OF DIVORCE and my right to
appeal. I do not waive any future rights I may have to the
modification of any judgment or decree in relation to this cause.
5. I affirm under penalty of perjury that all statements in this
Affidavit of Consent are accurate to the best of my knowledge. I have
filed this Affidavit of Consent in good faith and have not colluded
with anyone in relation to it, nor have I been subject to any force or
duress in signing it.
______________________________ _________________
Signature Date
_____________________________________________
Address, Line 1
_____________________________________________
Address, Line 2
STATE OF SOUTH CAROLINA
COUNTY OF ________________
Subscribed and sworn to before me on this ____ day of
__________________, 20_____.
__________________________________
Notary
-----------------------------------------------
To summarize: If you can't separate, you can forget about obtaining a
divorce in South Carolina. But if you can separate, then if you
qualify as residents of the state you also qualify for the divorce.
Since living apart is an economic hardship, I do suggest that you ask
a qualified South Carolina attorney whether your visa status stands in
the way of calling yourselves South Carolina residents. And anyway,
since this Answer does not constitute legal advice that you can rely
on (and I'm neither a South Carolina attorney nor a divorce attorney)
you really should talk to a qualified attorney at least to make sure
that you're on the right track.
Search terms used:
"south carolina" divorce jurisdiction alien
carolina visa resident divorce
Thank you again for bringing us your question. If you find any of my
answer unclear, please request clarification. I would appreciate it
if you would hold off on rating my answer until I have a chance to
reply.
Sincerely,
Google Answers Researcher
Richard-ga |
