Introduction to South Carolina Divorce Law
You probably have many divorce questions. Most people do. Divorce is a complex area of the law. You should not attempt to do your divorce alone.
Divorce cases are as different as the people getting divorced. Depending on your particular circumstances, your case may involve alimony, attorney’s fees, child custody, child support, child visitation, father’s rights, grandparent’s rights, marital debts, paternity, prenuptial agreements, property division (who gets the house, business, retirement plans, and other high value assets), protective orders, relocation to another county or state, value of assets, and many other SC complex divorce and family law questions.
This South Carolina Divorce Guide and the postings in my blog will provide you with a general background and understanding of South Carolina divorce law. However, you should not stop there. Instead, you should seek advice from an experienced Mt. Pleasant divorce lawyer, who can answer your specific questions.
You can get started now by calling me or scheduling an appointment. I want to help you.
Starting a South Carolina Divorce Case
Your divorce will start when your spouse or you files a complaint for divorce with the family law court. In Charleston County, the family law court is located in downtown Charleston. In Berkeley County, divorce cases are heard in Moncks Corner. The Dorchester County Family Court is located in Summerville.
You should file your divorce in the county where your spouse and you are living now. If your spouse lives in a different county, you can file where you last lived together or where your spouse lives now. For example, if both of you last lived together in Mount Pleasant and your spouse now lives in Goose Creek, you could file for divorce in Charleston County or Berkeley County.
If you file the divorce complaint, you will be known as the “plaintiff” in the case and your spouse will become the “defendant.” A family court judge will make all of the decisions in your case because South Carolina does not allow jury trials in a divorce case.
Your divorce complaint should contain specific pieces of information, including the reason that you want to be divorced, the names and birthdays of your children, whether you want alimony, and if you want to change your name. If you are the defendant in the divorce case, you should provide the same types of information in your answer to the divorce complaint.
The Three Procedural Phases of a South Carolina Divorce
There are three procedural phases in every South Carolina divorce case. Those phases are temporary orders, permanent orders, and post-decree modifications.
Your divorce judge can enter “temporary orders” for child custody, child support, alimony, attorney’s fees, and division of property (including possession of the house). These orders are often entered shortly after the divorce complaint is filed.
Since the temporary orders will stay in place until the divorce judge enters the permanent orders ending your marriage, you should consult a Mount Pleasant divorce attorney immediately after you have been served with a divorce complaint. If you wait too long, you could suffer serious losses. Your temporary orders could determine the final outcome in your divorce.
The second procedural phase of your divorce will occur when the divorce court judge enters a “judgment” and decree to end your marriage. As part of the judgment, the divorce court judge will decide all questions regarding alimony, child custody, child support, child visitation, property division, marital debts, attorney’s fees and other divorce and family law questions.
The third and final procedural phase of your divorce case will arise after your divorce becomes final. If your spouse or you want to change child support, child visitation, child custody, alimony, or other matters, the unhappy former spouse can ask the divorce court judge to modify the judgment.
South Carolina Allows Divorces for “No-Fault” and “Fault-Based” Reasons
You must have a reason to get divorced in South Carolina. You have two options:
1. a “no-fault” divorce; or
2. a “fault-based” divorce.
Each option has certain requirements that you must satisfy.
You might want to choose the “no-fault” option. There is only one procedural requirement to get a no-fault divorce. You must prove that your spouse and you have not lived together in the same residence for the last year.
You could also use the “fault-based” option to get your divorce. There are only four types of fault for which you can get a South Carolina divorce. Those reasons are:
1. adultery (heterosexual or homosexual);
2. physical abuse (note that emotional abuse, irreconcilable differences, or mental cruelty is not enough to get a divorce);
3. habitual drunkenness (alcohol, drugs, or both); or
4. desertion (one spouse is gone longer than one year from the marital home).
Each of these fault-based reasons for divorce can affect the ultimate outcome of the divorce, including decisions on alimony, child custody, and the division of marital property and debts.
Getting a South Carolina Divorce in 90 Days
If you choose the no-fault option and if your spouse and you agree on all issues, your divorce judge can enter a judgment to end your marriage 90 days after you file your divorce complaint. If you cannot agree on all issues, your divorce may take much longer to complete – as long as one year.
If you choose one of the fault-based options for getting a divorce, you can file immediately without waiting and you can be done 90 days later. However, if you cannot agree with your spouse on the division of your high value assets, child custody, or alimony, the process may take a year or longer to complete.
South Carolina Child Custody Law
Child custody is a major issue in many South Carolina divorces. If your spouse and you cannot agree on child custody and child visitation, your divorce judge will make the decisions for you. Your judge will decide child custody based on the “best interests” of your children.
Many people make incorrect assumptions about what is likely to happen with child custody and child visitation disputes. Contrary to popular belief, South Carolina divorce law does not favor mothers over fathers in deciding child custody and child visitation arrangements. Likewise, there is no “standard” child visitation schedule.
Your divorce judge will consider several factors in deciding child custody under the “best interests” standard. Your divorce judge is likely to pay particular attention to who was the primary caretaker for the children, the conduct and fitness of the respective parents, the history of any abuse, the wishes of the children, the opinions of third persons regarding the best interests of the children, and the age, health, and gender of the children. Since the outcome in a child custody dispute often depends on the skill of the divorce attorney, it is important for you to use an experienced Mount Pleasant divorce lawyer to get the best outcome.
South Carolina Child Support Law
If you have children, you’re probably worried about how much child support you will have to pay or you will receive. You want to make sure that your children are supported, but you may fear that there will not be enough money available.
Child support will be calculated in your case under South Carolina’s child support guidelines. These guidelines will be used to calculate temporary child support, as well as permanent child support.
The South Carolina child support guidelines are applied in all cases in which the combined parental gross income is less than $15,000 per month. The amount of child support will be calculated on the basis of:
– the number of nights that the children spend with each parent
– whether alimony is paid
– the number of children in the home
– who will be paying how much for health insurance for the children
– who will be paying how much for extraordinary medical expenses for the children
– who will be paying how much for work-related childcare costs.
You can get a rough estimate of how much child support will be paid in your case by using this child support worksheet.
Division of Marital Property
South Carolina is not a “community property” state. This means that your divorce court judge will not have to divide your marital property exactly 50/50.
Your divorce judge will, instead, divide your marital property and debts under the “equitable apportionment” standard. This legal standard allows the divorce judge to give each party what the judge things is “fair.”
The determination of what is marital property can be hotly contested, particularly in a high asset value divorce. As a general rule, your marital property will include your house, cars, retirement plans, business, and other high value assets that you acquired during your marriage. Of course, the definition of marital property can also be significantly altered, if you signed a prenuptial agreement before you were married or an antenuptial agreement while you were married.
In deciding what is fair, your divorce judge will listen to the testimony of experts regarding the value of your business, home, investments, and retirement plans. Your divorce judge will also consider the arguments of your divorce lawyer regarding what is fair.
Your divorce judge will also look at the length of your marriage, any marital misconduct (particularly if you have filed a fault-based divorce case), the value of the property, each spouse’s contribution to the acquisition of the property (including contributions as a homemaker), the income of each spouse, each spouse’s income potential, whether alimony is being awarded, child custody arrangements, and other factors.
It is not easy to get divorced. The emotional burdens can be overwhelming. You are making what may be the most important decisions in your life – decisions regarding your children, your finances, and more.
You don’t have to make these important decisions alone. I’m here to help you – giving you the legal guidance you need to create a better future for your family and you. I care about getting you through this difficult time as painlessly as possible. Please give me a call or schedule a free consultation today.