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Q: Divorce ( Answered,   0 Comments )
Question  
Subject: Divorce
Category: Family and Home
Asked by: bear54-ga
List Price: $50.00
Posted: 06 Sep 2003 16:22 PDT
Expires: 06 Oct 2003 16:22 PDT
Question ID: 253017
How can a married couple living in South Carolina on student visas get
divorced? They were married in Trinidad. They have no children. It
would be uncontested. Is a legal separation necessary before
proceeding with the divorce? The couple is still living together due
to financial concerns. How much would this process cost? Who should
they see? Is a lawyer necessary?
Answer  
Subject: Re: Divorce
Answered By: richard-ga on 06 Sep 2003 17:15 PDT
 
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

Request for Answer Clarification by bear54-ga on 07 Sep 2003 08:48 PDT
Does the requirement to "live separate and apart for a year" still
apply if adultery can be proven?

Can you refer this couple to a lawyer near the College of Charleston
or does the College of Charleston have a legal service which could
handle this at a reduced rate?

Clarification of Answer by richard-ga on 07 Sep 2003 11:12 PDT
Hello again.

There is no need to live apart before bringing an action for adultery.
 But the 3 month/one year residency requirement still applies.

You will need help from an attorney since even if the adulterous
spouse is ready to admit to adultery, the court will suspect collusion
(that is, that the parties are just 'saying' it's adultery to avoid
the one-year separation requirement.

I can understand your concern about price.  A leading law firm will
require at least a $7,500 retainer and the total cost might be $20,000
or more.
Rosen, Rosen & Hagood
http://www.rrhlawfirm.com/practice/pdp.aspx?pid=3
http://www.rrhlawfirm.com/experience/faqs.aspx?pid=3#faqid76

The College of Charleston does offer an 
Attorney Assistance Program
http://www.cofc.edu/studentaffairs/AtrnyAstPrgrm/legal.htm

But only the first hour is free - - after that you must pay whatever
rate you are able to negotiate with the attorney.

Your best bet is to start by contacting the
College of Charleston Contact Person
Dr. David S. Mann 
Department of Political Science
26 Coming Street - Room 101
Telephone Number - 953-5703
e-mail - Mannd@cofc.edu
http://www.cofc.edu/studentaffairs/AtrnyAstPrgrm/legal.htm#chas

It is possible that Dr. Mann will know which attorneys on the
Charleston list have divorce experience and might be willing to offer
you a favorable rate.

I hope you find this information useful at this unhappy time.
Best of luck.
-R
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