All You Need to Know About Divorce By Default


Divorce can be a complex and emotionally challenging process, often requiring both parties to actively participate in the divorce proceedings. However, there are instances where one spouse may not want the divorce, and refuse to cooperate with the process, or be unable to be located by the other spouse. In these cases, it becomes difficult to proceed with a typical divorce procedure. This is where obtaining a divorce by default may become an option. 

Understanding Divorce by Default

Divorce by default occurs when one spouse files for divorce, but the other spouse fails to respond or participate in the legal proceedings within a specific timeframe. This situation can arise due to various reasons, such as the other spouse’s absence, unwillingness to cooperate, or lack of awareness of the divorce filing. It is important to note that divorce by default should be considered as a last resort, and all reasonable efforts should be made to notify and involve the other spouse.

Requirements for Divorce by Default in South Carolina 

To obtain a divorce by default in South Carolina, you will need to take the following steps:

  1. Establish jurisdiction: Either one spouse must have been a resident of South Carolina for a minimum of one year before filing for divorce, or both parties for one year. 
  2. Proper notification: The filing spouse must make diligent efforts to notify the other spouse about the divorce proceedings. This involves serving the divorce papers in a legally acceptable manner. If the filing spouse is unable to locate the other spouse, they may need to publish a notice in a local newspaper.
  3. Waiting Period: South Carolina law requires a waiting period of 30 days after serving the divorce papers to receive a response from the other party. 
  4. File request for default: Once that waiting period is over and you have not heard a response, you can file a request for a divorce by default.
  5. Default hearing: Often you will be required to attend a hearing in which the judge reviews your request and may ask you questions. The court will consider the filing spouse’s requests for property division, child custody, child support, alimony, and other relevant matters. 
  6. Finalize divorce: Following your hearing, you will need to request the final divorce from the courts.
  7. Contact your spouse: When the divorce is final, you will need to try to let your now former spouse know.

Benefits and Limitations of Divorce by Default

While obtaining a divorce by default may seem like a convenient option in certain situations, there are important implications and considerations to keep in mind. 

  1. Limited control over the outcome: Since the non-responsive spouse does not actively participate in the proceedings, the court’s decisions are primarily based on the filing spouse’s requests and supporting evidence. This can result in outcomes that may not fully align with the non-responsive spouse’s interests. If the spouse suddenly does want to participate, you will need to restart the proceedings.
  2. Asset division and alimony: In a divorce by default, the court will decide how to divide marital assets and whether alimony should be awarded based on the information provided by the filing spouse. It is crucial for the filing spouse to present accurate and complete information to ensure a fair division of assets and appropriate alimony determination.
  3. Child custody and support: The court will also determine child custody and support arrangements based on the best interests of the child, relying on the filing spouse’s input. It is important for the filing spouse to present relevant and comprehensive information regarding child custody and support to ensure fair decisions.
  4. Cost of divorce: With a traditional divorce, the filing spouse needs to spend money on more of a lawyer’s time that includes preparing for a trial. Because there is no former spouse fighting for another result, divorce by default can save money. 
  5. Efficiency: A divorce by default is often a faster, more straightforward process than a traditional divorce. In addition, you will often avoid spending time gathering all of your financial information to show the courts, especially if you do not have children.

While divorce by default can provide a solution in situations where communication or cooperation is challenging, it is important to use it as a last resort. Meeting with legal professionals and making diligent efforts to involve the other spouse can help ensure fairness and consider the best interests of both parties involved. Reach out to our compassionate family law attorneys in South Carolina for guidance and counsel.

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