So, a lot of people have asked me questions about 'LEGAL SEPARATION", "TEMPORARY HEARING", "SUMMONS", "COMPLAINT" and the big question... do I really need an attorney for my divorce if it's uncontested??
I'm going to tackle the last question first... YES. YES. YES. You need an attorney for your divorce, no matter how uncontested or amicable it may be. And here's why...
A divorce proceeding begins when you file a summons and complaint in Family Court. This will always be the first step. It is literally the only way to get the Clerk of Court to assign you a case number so that you can ultimately get a court order for divorce. While you can find those forms online, the rules that govern the process and procedure can be complicated and convoluted.
As I mentioned in an earlier post, you have to have "grounds" for a divorce. Most people get a divorce based on one year of continuous separation with no intent to reconcile. This is called a "no fault" divorce.
If, in that instance, you file for your divorce before the year waiting period is up, you can request a temporary hearing. The judge at the temporary hearing can either:
resolve issues that you and your spouse disagree upon (like child custody, child support, alimony, who is going to live in the marital home...) until a trial or final hearing can be held; OR
approve whatever agreement you and your spouse have come to regarding all of the issues in divorce. Some of these issues that you may not have thought about are: division of retirement benefits, who is the primary decision maker regarding the children, who is entitled to claim the children in their tax deductions,... and all of the issues that you may not have considered go on and on and on...
Again, if you filed under the "no fault" grounds for divorce, you must still wait for an entire year of separation for your divorce to be finalized. I guess this is the period that would be called "legal separation", although South Carolina does not recognize this concept. This is the part that becomes sticky. And, this is the part that if you begin dating again during this time period can become detrimental to your divorce proceeding. For this reason alone, you need an attorney to give you the right advice.
But, at the end of the day, even in an uncontested amicable divorce, knowing the process, knowing the procedures, knowing the issues... really necessitates an attorney's assistance.
So, call a lawyer. I know a good one.
Have a good weekend everyone!
Michelle