Common Law Marriage Divorce in South Carolina: Complete 2026 Legal Guide
South Carolina abolished common law marriage on July 24, 2019, when the Supreme Court issued its unanimous decision in Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019). Couples who established valid common law marriages before this date remain legally married and must obtain a formal divorce through the South Carolina Family Court system, paying a $150 filing fee and satisfying the same residency requirements as ceremonial marriages. Those attempting to prove a pre-2019 common law marriage must now meet the heightened "clear and convincing evidence" standard rather than the previous "preponderance of the evidence" threshold, demonstrating mutual intent to be married through documentary evidence such as joint tax returns, shared property deeds, and beneficiary designations.
Key Facts: Common Law Divorce in South Carolina
| Factor | Details |
|---|---|
| Common Law Marriage Status | Abolished July 24, 2019 (Stone v. Thompson) |
| Pre-2019 Marriages | Still valid and recognized |
| Burden of Proof | Clear and convincing evidence |
| Filing Fee | $150 (all counties) |
| Residency Requirement | 1 year (one spouse) or 3 months (both spouses) |
| Waiting Period | 90 days minimum after filing |
| No-Fault Separation | 1 year continuous separation |
| Property Division | Equitable distribution (15 factors) |
| Governing Statute | S.C. Code § 20-3-10 |
Understanding Common Law Marriage in South Carolina After Stone v. Thompson
South Carolina recognized common law marriages for over 100 years before the Supreme Court abolished the practice on July 24, 2019. Couples who entered valid common law marriages before this date remain legally married under South Carolina law and must file for divorce through the Family Court system to dissolve their union. The Stone v. Thompson decision did not invalidate existing marriages but prohibited new common law marriages from forming after the ruling date.
The Stone v. Thompson case involved Marion Stone and Susan Thompson, who cohabitated for over 20 years and had two children together. When Stone sought a divorce and equitable distribution of property, Thompson denied they were ever married. The Supreme Court used this case to evaluate the common law marriage doctrine entirely, ultimately concluding that the institution's "foundations have eroded with the passage of time" and that outcomes had become "unpredictable and often convoluted."
The Court joined the overwhelming national trend by abolishing common law marriage prospectively. As of 2026, South Carolina is no longer among the eight states that recognize new common law marriages, though it continues to recognize valid pre-2019 unions and common law marriages validly established in other states where the practice remains legal.
Proving a Pre-2019 Common Law Marriage: The Clear and Convincing Evidence Standard
Couples seeking divorce from a pre-2019 common law marriage must first establish that a valid marriage existed using the heightened "clear and convincing evidence" standard mandated by Stone v. Thompson. This burden of proof requires demonstrating that the claimed marriage is highly and substantially more probable than not, positioned between "preponderance of the evidence" (more likely than not) and "beyond a reasonable doubt" (the criminal standard).
The essential element for proving a common law marriage is mutual assent. Each partner must have intended to be married to the other, and each must have understood the other's intent at the time the marriage formed. Cohabitation alone does not establish marriage, even after decades of living together. The South Carolina courts have repeatedly held that a couple can live together one night and be common law married, while another couple can live together 20 years and not be married, depending solely on their mutual intent.
Evidence That Supports a Common Law Marriage Claim
Documentary evidence carries significant weight when proving mutual intent to be married. South Carolina courts have accepted the following as evidence of common law marriage:
- Joint federal and state tax returns filed as "married filing jointly" or "married filing separately"
- Property deeds listing both parties as husband and wife
- Life insurance policies naming the other party as spouse/beneficiary
- Employer-provided health insurance enrollment forms designating the other as spouse
- Joint bank accounts opened as a married couple
- Wills identifying the other party as spouse
- Birth certificates listing both parties as parents with the same surname
- Signed documents using the same last name (if one party adopted the other's surname)
Testimonial evidence from friends, family members, and colleagues who observed the couple presenting themselves as married to the community also supports common law marriage claims. Witnesses should be prepared to testify that the couple introduced each other as husband and wife, used marital terms consistently, and held themselves out publicly as a married couple.
Evidence That Weakens a Common Law Marriage Claim
Certain evidence undermines claims of mutual intent to be married:
- Tax returns filed as "single" or "head of household" throughout the relationship
- Loan applications where either party checked "single" or "unmarried"
- Insurance forms listing the other party as "domestic partner" rather than spouse
- Lease agreements signed as unmarried individuals
- Employment records showing different beneficiaries
- Testimony from witnesses that the couple denied being married
- Written statements from either party disclaiming marital status
In Stone v. Thompson itself, the Supreme Court found that Thompson's consistent classification of herself as single on all tax returns throughout the relationship demonstrated that she never intended to be married to Stone.
Filing for Divorce from a Common Law Marriage in South Carolina
Once a pre-2019 common law marriage is established, divorce proceedings follow the same rules and procedures as divorces from ceremonial marriages. The spouse filing for divorce (plaintiff) must meet South Carolina's residency requirements under S.C. Code § 20-3-30, pay the $150 filing fee, and prove grounds for divorce under S.C. Code § 20-3-10.
Residency Requirements
South Carolina applies different residency requirements based on where the spouses live:
| Residency Scenario | Requirement |
|---|---|
| One spouse is SC resident | 1 year continuous residency |
| Both spouses are SC residents | 3 months continuous residency |
| Military personnel stationed in SC | Time stationed counts toward residency |
Proof of residency includes South Carolina driver's licenses, vehicle registrations, voter registration cards, utility bills, lease agreements, property deeds, employment records, pay stubs, W-2 forms, and bank statements showing a South Carolina address. The plaintiff must file in the county where either spouse resides; if only the plaintiff lives in South Carolina, filing occurs in the plaintiff's county of residence.
Grounds for Divorce
South Carolina recognizes five grounds for divorce under S.C. Code § 20-3-10. Four are fault-based grounds that allow immediate filing, while one is the no-fault ground requiring separation:
| Ground | Type | Separation Required |
|---|---|---|
| Adultery | Fault | No |
| Desertion for 1 year | Fault | Yes (1 year) |
| Physical cruelty | Fault | No |
| Habitual drunkenness or drug abuse | Fault | No |
| 1-year continuous separation | No-fault | Yes (1 year) |
For no-fault divorce, the spouses must live separate and apart without cohabitation for one continuous year before either party may file. The South Carolina Supreme Court has held that living in separate bedrooms within the same house does not satisfy the separation requirement. Any reconciliation or resumption of cohabitation during this period resets the one-year clock.
Fault-based grounds allow spouses to file immediately without the one-year separation. However, proving fault requires evidence: adultery requires proof of both opportunity and inclination; physical cruelty requires documented instances of physical violence; habitual drunkenness requires evidence of ongoing substance abuse affecting the marriage.
The 90-Day Waiting Period
Under S.C. Code § 20-3-80, South Carolina courts cannot issue a final divorce decree until at least 90 days after the complaint is filed with the Clerk of Court. This mandatory waiting period applies to all divorces and cannot be waived, even if both parties agree to expedite the process. Additionally, the court cannot schedule a hearing (called a "reference" in South Carolina) until at least 60 days after filing.
Total Timeline for Common Law Divorce
| Divorce Type | Minimum Timeline |
|---|---|
| No-fault (with 1-year separation) | 15 months (12 months separation + 3 months post-filing) |
| Fault-based (uncontested) | 3-4 months |
| Fault-based (contested) | 18-24+ months |
Property Division in Common Law Divorce Cases
South Carolina follows equitable distribution principles under S.C. Code Ann. § 20-3-620, meaning courts divide marital property fairly but not necessarily equally. Property acquired during the marriage belongs to both spouses regardless of whose name appears on the title, while separate property (assets owned before marriage or inherited during marriage) generally remains with the original owner.
For common law marriages, courts must first determine when the marriage began to identify which property is marital versus separate. This determination can be complex because common law marriages form at the moment of mutual assent, not on a specific ceremony date. The party claiming an earlier marriage date bears the burden of proving that intent existed at that time.
The 15 Factors for Equitable Distribution
South Carolina courts consider fifteen statutory factors when dividing marital property:
- Duration of the marriage
- Marital misconduct or fault
- Value of marital property and each spouse's contribution to acquisition, appreciation, or preservation
- Contribution of a spouse as homemaker
- Income of each spouse and earning potential
- Physical and emotional health of each spouse
- Need for additional training or education
- Whether alimony was awarded
- Non-marital property of each spouse
- Existence of retirement benefits
- Whether property is liquid or non-liquid
- Tax consequences of property division
- Obligations from prior marriages
- Liens and encumbrances on property
- Any other relevant factors
Longer marriages typically result in more equal property splits, while shorter unions may favor the spouse who contributed more assets. Courts value marital property as of the filing date, though appreciation or depreciation between separation and divorce may be considered.
Prenuptial and Postnuptial Agreements
South Carolina courts presume prenuptial and postnuptial agreements are fair and enforceable if both parties were separately represented by counsel and made full financial disclosures. These agreements can exclude specific property from equitable distribution or establish predetermined division formulas. For common law marriages, proving that a written agreement existed at the time mutual assent formed presents unique challenges.
Alimony in Common Law Divorce Cases
South Carolina courts may award alimony to either spouse based on the factors in S.C. Code Ann. § 20-3-130. The duration of the common law marriage significantly affects alimony eligibility, with longer marriages (10+ years) more likely to result in periodic alimony awards.
Alimony and Adultery
Under S.C. Code § 20-3-130(A), no alimony may be awarded to a spouse who commits adultery before the formal signing of a written property or marital settlement agreement or entry of a permanent order of separate maintenance and support. This statutory bar makes adultery allegations particularly significant in alimony proceedings for common law divorces.
Types of Alimony
| Alimony Type | Purpose | Duration |
|---|---|---|
| Permanent periodic | Long-term support | Until remarriage, death, or cohabitation |
| Rehabilitative | Education/training support | Limited term |
| Reimbursement | Repay specific contributions | Fixed period |
| Lump-sum | One-time payment | N/A |
Child Custody and Support in Common Law Divorces
Children born during a common law marriage are legitimate children of the marriage with the same rights as children of ceremonial marriages. South Carolina courts decide custody based on the best interests of the child, and child support follows the South Carolina Child Support Guidelines established by the Department of Social Services.
South Carolina mandates mediation for all contested family court cases under the South Carolina Alternative Dispute Resolution Rules (SCADR), including custody disputes. Mediation costs approximately $200 per hour for court-appointed mediators. If parents cannot reach agreement, the court will conduct a custody evaluation and trial.
Guardian ad litem fees in contested custody cases range from $1,500 to $5,000 or more, depending on case complexity. These costs are typically split between the parties or allocated based on income disparity.
Common Law Property Rights Without Marriage
For couples who cohabitated after July 24, 2019, or who cannot prove a pre-2019 common law marriage existed, South Carolina law provides no automatic property rights. Unlike divorce, where equitable distribution applies, unmarried cohabitants have only the property rights established by title, deed, or contract.
Options for unmarried couples seeking property division include:
- Express contracts: Written agreements establishing property ownership and division
- Implied contracts: Claims based on conduct suggesting an agreement
- Resulting trusts: Claims that one party holds property in trust for another
- Constructive trusts: Equitable remedy preventing unjust enrichment
- Partition actions: Court proceedings to divide jointly-owned real property
These claims are civil matters heard in the Court of Common Pleas rather than Family Court and do not carry the same presumptions that apply in divorce proceedings.
How South Carolina Treats Out-of-State Common Law Marriages
South Carolina recognizes valid common law marriages established in other states where the practice remains legal. As of 2026, states still permitting new common law marriages include Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and the District of Columbia (with varying requirements).
Couples who established a common law marriage in one of these jurisdictions can file for divorce in South Carolina if they meet South Carolina's residency requirements. The burden remains on the party claiming marriage to prove that the union was valid under the laws of the state where it was formed.
Filing Costs and Attorney Fees
The $150 filing fee paid to the Clerk of Court initiates the divorce action. Additional costs include:
| Cost Category | Amount |
|---|---|
| Filing fee | $150 |
| Service of process | $50-$125 |
| Parenting classes (if children) | $50-$150 |
| Mediation (if contested) | $200/hour |
| Guardian ad litem (contested custody) | $1,500-$5,000 |
| Attorney fees (uncontested) | $1,500-$3,000 |
| Attorney fees (contested) | $5,000-$25,000+ |
South Carolina attorney fees average $275 per hour, with retainers typically ranging from $2,500 to $5,000 upfront. Low-income filers may request a fee waiver using Form SCCA/400 if household income falls below 125% of the federal poverty level ($19,500 for individuals in 2026). As of May 2026, verify current filing fees and court costs with your local Clerk of Court before filing.
Frequently Asked Questions
Can I still get a common law divorce in South Carolina in 2026?
Yes, if your common law marriage was established before July 24, 2019. The Stone v. Thompson decision abolished new common law marriages but preserved existing ones. You must prove your pre-2019 marriage using clear and convincing evidence before proceeding with divorce. The filing fee is $150, and standard divorce procedures apply.
How do I prove my common law marriage existed before the 2019 cutoff?
Gather documentary evidence showing mutual intent to be married: joint tax returns filed as married, property deeds listing both parties as husband and wife, life insurance beneficiary designations, employer health insurance enrollment forms, joint bank accounts, and witness testimony from family and friends. The clear and convincing evidence standard requires highly probable proof.
What if my partner denies we were ever common law married?
The burden falls on the party claiming marriage to prove it existed. You will need substantial documentary and testimonial evidence of mutual assent. If your former partner consistently filed taxes as single, checked "unmarried" on official documents, or denied marital status to others, courts may find insufficient evidence of a valid common law marriage.
How long does a common law divorce take in South Carolina?
For no-fault divorces, expect a minimum of 15 months: 12 months of separation plus 90 days post-filing. Fault-based uncontested divorces can finalize in 3-4 months. Contested cases involving property disputes, custody battles, or disagreements about whether a marriage existed may take 18-24 months or longer.
Do I get property rights if I cannot prove common law marriage?
No automatic property division rights apply. Without a valid marriage, you must pursue civil claims like express or implied contracts, resulting trusts, or partition actions in the Court of Common Pleas. South Carolina does not recognize "palimony" or automatic property sharing for unmarried cohabitants.
Does South Carolina recognize my common law marriage from another state?
Yes. South Carolina recognizes valid common law marriages established in states where the practice remains legal, including Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and D.C. You must prove the marriage was valid under that state's laws and meet South Carolina residency requirements to file here.
Can I receive alimony from a common law marriage divorce?
Yes, once a valid common law marriage is established, alimony eligibility follows the same rules as ceremonial marriages under S.C. Code § 20-3-130. Courts consider marriage duration, earning capacity, standard of living, and other factors. However, if you committed adultery before a settlement agreement was signed, you are barred from receiving alimony.
What happens to children from a common law marriage if we divorce?
Children born during a valid common law marriage have identical legal status to children of ceremonial marriages. Custody follows the best interests of the child standard, and child support follows South Carolina guidelines. Both parents retain rights and obligations regardless of marital status.
Is there a waiting period before my common law divorce is final?
Yes. Under S.C. Code § 20-3-80, no divorce decree can be issued until at least 90 days after filing. This applies to all divorces in South Carolina, including fault-based cases. The 90-day period cannot be waived by agreement of the parties.
What evidence shows we were NOT common law married?
Key evidence includes: tax returns filed as single throughout the relationship, loan applications marked "unmarried," insurance forms listing the partner as "domestic partner" instead of spouse, separate financial accounts, and testimony from witnesses that the couple denied being married. In Stone v. Thompson, tax returns filed as single over 20 years proved no marriage existed.
This guide provides general information about common law divorce in South Carolina as of 2026. Filing fees, court costs, and legal procedures may change. Consult a licensed South Carolina family law attorney for advice specific to your situation.
Author: Antonio G. Jimenez, Esq. Credentials: Florida Bar No. 21022 | Covering South Carolina divorce law
Sources: South Carolina Judicial Branch, Stone v. Thompson, 428 S.C. 79 (2019), South Carolina Code of Laws, South Carolina Law Review