Divorcing a Spouse Who Is in Prison in South Carolina

Reviewed by Carrie Warner, Attorney at Law, SC Bar No. 72836 · Last reviewed November 2, 2026

Yes, you can divorce a spouse who is in prison in South Carolina, but imprisonment is not a ground for divorce by itself. You still need one of the five grounds in state law, and your spouse still has to be properly served and given a chance to respond. This guide walks through the grounds, service, how an incarcerated spouse can take part, and what happens with children and support.

Is Imprisonment a Ground for Divorce in South Carolina?

No. Some states list a spouse’s imprisonment as a ground for divorce. South Carolina does not. Under S.C. Code § 20-3-10, there are only five grounds:

• Adultery
• Desertion for one year
• Physical cruelty
• Habitual drunkenness, including drunkenness caused by narcotic drug use
• Living separate and apart without cohabitation for one year (the only no-fault ground)

So the question is not “Is my spouse in prison?” but “Which of these five grounds fits my facts, and can I prove it?”

The one-year separation ground

Many spouses of incarcerated people file on the no-fault ground of one year of living separate and apart. The time apart can be completed before you file. However, whether time apart caused by incarceration counts as “living separate and apart” can depend on the facts. Courts may look at whether the marriage was actually over during that period, not just whether you were in different places. For example, a spouse who kept visiting, writing as a partner and planning a life together after release may face more questions than a spouse who clearly ended the relationship on a known date.

If you rely on this ground, be ready to show when the marriage ended and that you have not resumed the relationship since. South Carolina family court judges generally expect the date of separation to be corroborated by a witness other than the spouses or by other evidence. Read more in our guides to the one-year separation rule and corroborating witnesses.

Fault grounds

A fault ground may also fit, depending on what happened. For example, if the conduct that led to the arrest included violence against you, physical cruelty may apply. If there was a long pattern of substance abuse, habitual drunkenness may apply. Desertion usually involves a spouse choosing to leave without justification, so a spouse who is held in custody against their will may not fit that ground neatly. Ask an attorney before relying on it.

Fault grounds have their own proof requirements and possible defenses. They can also affect issues like alimony. Under § 20-3-80, a divorce based on adultery, physical cruelty or habitual drunkenness cannot be finalized until at least three months after filing. That waiting period does not apply to the one-year separation or desertion grounds.

Residency and Where to File

Under § 20-3-30, the filing spouse must have lived in South Carolina for at least one year before filing. A filing spouse who lives outside South Carolina may still file here if the defendant has lived in the state for one year (time in a South Carolina facility may raise questions, so ask an attorney). If both spouses are South Carolina residents when the case is filed, the filing spouse needs only three months.

Venue (the county where you file) is set by § 20-3-60. Generally, you file in the county where the defendant resides; if the defendant is a nonresident or cannot be found, in the county where you reside; or in the county where you last lived together as spouses. Where an inmate “resides” for venue purposes is not always obvious, especially if the facility is in a county where neither of you ever lived. Filing where you last lived together or asking an attorney before filing can avoid a later dispute.

Serving Divorce Papers on an Incarcerated Spouse

Your spouse must be formally served with the summons and complaint. Under Rule 4 of the South Carolina Rules of Civil Procedure, service can be made by personal delivery (by the sheriff or any non-party adult 18 or older), by certified mail with restricted delivery, or by the spouse signing an acceptance of service.

Prisons and jails have their own procedures for legal mail and for outside people delivering papers. Practical steps include:

1. Confirm exactly where your spouse is held. Use the inmate locator for the South Carolina Department of Corrections, the county detention center, or the Federal Bureau of Prisons, depending on the facility.
2. Get your spouse’s full legal name and inmate or booking number. Facilities route mail by that number.
3. Call the facility and ask how it handles service of civil legal papers. Some route papers through a records office or legal mail process; some allow a deputy to deliver them.
4. Consider whether your spouse would sign an acceptance of service. If they agree, this can be simpler than arranging delivery.
5. Keep proof of service. The court will not move forward without it.

Certified mail to an institution may be signed for by staff rather than your spouse, which can raise questions about whether restricted delivery was met. Talk with an attorney or the Clerk of Court about which method is most reliable for the specific facility. Our guide on how divorce papers are served in South Carolina covers each method.

How an Incarcerated Spouse Takes Part in the Case

Once served, your spouse has 30 days to file an answer and any counterclaim. An incarcerated spouse can respond in writing, hire a lawyer, sign a settlement agreement, or simply not respond.

• If they do not respond: the case may proceed by default. You still have to prove your ground and residency at a final hearing, usually with a corroborating witness.
• If they agree: you may be able to sign a written settlement agreement covering property, debts, custody and support. The family court reviews and approves it.
• If they contest: the case moves through the usual steps, including financial declarations, discovery and, in most contested cases, mediation.

Incarcerated parties cannot simply come to court. Judges may allow participation by phone or video, or the incarcerated spouse may appear through counsel. Arrangements depend on the court and the facility, so raise this early. Expect the judge to ask about notice and service.

Each party generally must file a financial declaration under Family Court Rule 20. An incarcerated spouse may have little income, but the form still matters, especially if there are assets or debts to divide.

Property and Debts

South Carolina divides marital property by equitable distribution, not an automatic 50/50 split. The court weighs the factors in § 20-3-620, which include marital misconduct or fault that affected the couple’s finances, each spouse’s contributions, and debts. Some situations come up often when a spouse is incarcerated:

• Legal fees, fines or restitution tied to the criminal case. Whether these are treated as marital debt can depend on when and why they arose.
• Money one spouse spent on the other’s commissary, phone calls or legal defense.
• Vehicles, homes or accounts in both names that one spouse has been managing alone.

Keep records of who paid what and when. If your spouse can sign documents, such as a deed or vehicle title transfer, plan for how that will happen inside the facility.

Custody and Visitation

Custody decisions are based on the best interest of the child. Section 63-15-240 lists factors courts consider, including each parent’s ability to care for the child and any history of harm. A parent’s incarceration usually limits the role they can play while confined, and the reason for the incarceration may matter to the court, especially in cases involving violence or harm to children.

Incarceration does not automatically end parental rights. Courts may set visitation, contact by phone, video or letters, or no contact, depending on the child’s needs and safety. Termination of parental rights is a separate legal process with its own standards. A parenting plan should also think ahead to release: how contact might resume, whether it would be supervised, and how changes will be handled. See our pages on the best interest standard and parenting plans.

Child Support and Alimony

Child support in South Carolina is set under the state Child Support Guidelines. An incarcerated parent may have little or no income, and courts look at actual ability to pay. If an existing order becomes unrealistic because of incarceration, the remedy is a modification request, not simply stopping payment. Past-due support generally remains owed. Our page on modifying child support explains the process.

Alimony depends on the factors in § 20-3-130, including each spouse’s earnings, needs and marital misconduct. A spouse in prison may have limited ability to pay, but the court looks at the whole financial picture, including assets.

Safety and Protective Orders

If you fear contact from an incarcerated spouse or their associates, tell your attorney. Many facilities can restrict an inmate’s calls or mail to a specific person, and you may also be able to register for victim notification of release dates. If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233. Our guide to orders of protection during a divorce explains court options under the Protection from Domestic Abuse Act.

A Checklist Before You File

• Your spouse’s full legal name, inmate number and facility address
• Expected release date, if known
• The date the marriage ended and a witness who can confirm it
• Your marriage certificate and children’s birth certificates
• A list of joint accounts, property and debts
• Copies of any existing custody or support orders
• Any criminal case documents relevant to safety or fault

For more on the overall process, see the South Carolina Divorce Guide.

Frequently Asked Questions

Can I divorce my spouse just because they are in prison?

No. South Carolina has no imprisonment ground. You need one of the five statutory grounds, such as one year of living separate and apart or a fault ground that fits your facts.

Does time my spouse spent in prison count toward the one-year separation?

It may, but it depends on the facts. Courts may look at whether the marriage was actually over during that time. Be ready to show when the relationship ended, ideally with a corroborating witness.

How do I serve divorce papers on someone in prison?

South Carolina Rule 4 allows personal delivery, certified mail with restricted delivery, or acceptance of service. Contact the facility about its process for civil legal papers and keep proof of service.

What if my incarcerated spouse never responds?

If your spouse does not answer within 30 days after service, the case may proceed by default. You still need to prove your ground and residency at a final hearing.

Does my spouse lose custody because they are in prison?

Not automatically. The court decides custody and visitation based on the child’s best interest, which can include the reason for the incarceration and the child’s safety.

Sources

• S.C. Code Title 20, Chapter 3 (Divorce)
• S.C. Code Title 63, Chapter 15 (Custody and Visitation)
• S.C. Code Title 20, Chapter 4 (Protection from Domestic Abuse)
• South Carolina Judicial Branch (court rules and forms)