Same-Sex Divorce in South Carolina
Table of Contents
Frequently Asked Questions
Is the same-sex divorce process different from other divorces in South Carolina?
No. The legal process is identical. You file in Family Court and follow the same procedures under South Carolina law. However, unique issues around property division and pre-marriage assets may arise for LGBTQ+ couples.
How is property divided in a same-sex divorce in SC
South Carolina uses equitable distribution. For same-sex couples, a key challenge is that only property acquired during the legal marriage is typically classified as marital property—even if the couple shared finances for years before they could legally marry.
What if we were together for years before we could legally marry
An experienced attorney can present arguments and evidence to the court advocating for a fair property division that accounts for the full length of your relationship, including pre-marriage contributions.
If you’re considering or preparing for a same-sex divorce in South Carolina, you may be wondering whether the process will be different from any other divorce. The short answer is that the legal process is the same—but the practical reality can be more complicated.
Since the 2015 Obergefell v. Hodges decision, same-sex marriages have been fully recognized across the United States, including here in South Carolina. That means same-sex couples have the same right to divorce as any other married couple. But LGBTQ+ couples often face unique issues around property division, parental rights, and the legacy of years spent together before marriage was legally available.
This guide covers everything you need to know. For a broader overview of all LGBTQ+ family law matters, visit our comprehensive guide to LGBTQ+ family law in South Carolina.
How Same-Sex Divorce Works in South Carolina
Same-sex divorce in SC follows the exact same process as any other divorce in South Carolina. You’ll file your case in Family Court, and the same statutes apply.
Residency Requirements
To file for divorce in South Carolina, at least one spouse must have been a resident of the state for at least one year before filing. If both spouses live in SC, the residency requirement drops to three months.
Grounds for Divorce
Under SC Code § 20-3-10, you can file for divorce on any of the following grounds:
- One year of continuous separation (no-fault divorce)
- Adultery
- Habitual drunkenness or narcotics use
- Physical cruelty
- Desertion for one year or more
The no-fault ground of one year’s separation is the most common basis for same-sex divorce filings in Columbia and throughout South Carolina.
Property Division: Where It Gets Complicated
South Carolina is an equitable distribution state. That means the court divides marital property fairly—not necessarily equally—based on a variety of factors including the length of the marriage, each spouse’s contributions, and each spouse’s financial circumstances.
The Date-of-Marriage Problem
For many same-sex couples, the biggest challenge is the date-of-marriage cutoff. South Carolina courts generally classify property acquired during the marriage as marital property, and property acquired before the marriage as separate property.
If you and your spouse were in a committed relationship for 10, 15, or even 20 years before you could legally marry, a significant portion of what you built together may technically be classified as “non-marital” property. This can result in an unfair outcome where one spouse walks away with assets that both partners helped create.
What Can Be Done?
An experienced attorney can advocate for a more equitable result by:
- Presenting evidence of shared finances before the legal marriage date—joint bank accounts, shared mortgage payments, co-mingled assets
- Arguing for recognition of the full relationship in the court’s equitable distribution analysis
- Citing evolving case law from other jurisdictions that have addressed this issue
If your marriage predates the Obergefell decision, you’ll also want to read about pre-Obergefell marriage challenges that may affect your case.
Key Takeaway: Don’t assume the court will automatically account for your years together before legal marriage. Work with an attorney who understands how to present your full financial history to the court.
Custody and Support in Same-Sex Divorce
If you and your spouse have children, custody and child support will be determined using the same best interests of the child standard that applies in all South Carolina custody cases.
Parental Rights and Legal Standing
If both spouses are legal parents—through biology, adoption, or second-parent adoption—each has equal standing to seek custody or visitation. However, if only one spouse is a legal parent, the other spouse may face significant challenges establishing standing.
This is one reason why second-parent adoption is so important. If your divorce is already underway and you never completed a formal adoption, talk to an attorney immediately about your options.
For a deeper look at how custody works for LGBTQ+ families, see our guide on custody rights for LGBTQ+ parents.
Alimony and Spousal Support
Alimony in South Carolina is based on factors such as the length of the marriage, each spouse’s earning capacity, and the standard of living during the marriage. For same-sex couples, the “length of the marriage” question can again be complicated if the relationship significantly predated the legal marriage.
Get Experienced Legal Help for Your Same-Sex Divorce
Navigating a same-sex divorce in South Carolina requires an attorney who understands both the standard divorce process and the unique issues LGBTQ+ couples face. At Warner Law, attorney Carrie Warner has the experience and sensitivity to guide you through this process with confidence.
We serve clients throughout Columbia, Richland County, Lexington County, and the greater Midlands area.
Schedule your consultation today to discuss your case with a family law attorney who understands your situation.
This article is for informational purposes only and does not constitute legal advice. Every family law case is unique. Contact Warner Law to discuss your specific situation.
Ready to get started?
My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.