South Carolina Divorce Process
After a motion for divorce is filed a judge may order mandatory mediation for the spouses before either party can request a court hearing to grant a divorce.
Unlike a divorce that dissolves a valid marriage, an annulment is a legal decree that a marriage is void. In addition, an annulment proceeding can resolve some of the same issues that would be the subject of a divorce proceeding, such as child custody and support and alimony. Annulments are granted only in limited situations and cannot be granted merely because the marriage is of short duration. They are normally not granted for “religious” reasons.
A settlement agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney’s fees, custody of their children and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other.
South Carolina Residency Requirements for Divorce
If you seek to file a divorce in South Carolina, it is important to be aware of the residency requirements prior to filing for your divorce. In order to file for divorce you must have been a resident for at least one year, or if both spouses are residents of the state then the requirement is reduced to 3 months. The papers for dissolution of marriage must also be filed in a county where either of the spouses resides, or in the county where both parties last lived as husband and wife.
South Carolina Grounds for Divorce
The only approved no-fault ground available to those seeking a divorce is based on living separate and apart without cohabitation for 1 year. A divorce based on living separate can mean a multitude of things, but ultimately it means that there is no reasonable hope that the marriage can continue. The court may approve or reject a marital settlement agreement of the spouses. Standard financial disclosure forms are required to be filed. The four additional grounds that a party may seek a divorce upon which are based on assignment of fault are: adultery; habitual use of drugs or alcohol; physical cruelty; and willful desertion for 1 year.
To receive a court-approved divorce, it is not necessary to show that either one of the parties was at fault in the decline of the marriage. The only thing that is necessary to prove is that there has been a breakdown in the marital relationship to the extent that the objects and goals of marriage have been destroyed and that no reasonable possibility remains that the marriage can be saved.
The assignment of fault may make a difference in terms of a court’s final determination of the division of property. If one party is determined to be at fault for the breakdown of the marriage, then the court may award the other party more property.
South Carolina Division of Property
State statutes now provide for the “equitable” distribution of the marital property of the marriage at the time of the final divorce between the parties. “Marital Property” is defined as all jointly owned property and all other property, other than separate property, acquired by either or both of the parties during the marriage and up to the time of the final separation of the parties. “Separate Property” is property owned by one party at the time of the marriage or inherited property or gifts to one party from a third person and maintained as separate property. Where “Marital Property” and “Separate Property” are mixed together or where “Separate Property” is increased through the active efforts of either party during the marriage, then such property may be classified as having been transmuted from separate property to marital property.
In making its equitable distribution awards the courts are not only authorized to make monetary awards to one of the parties, but may also divide or order sold or transfer jointly owned marital property to one of the parties. The court in making its equitable distribution awards is not required to divide the marital property on an equal basis but rather, in deciding what an equitable division of marital property should be, will consider various factors listed in the Equitable Distribution Statute, including the relative monetary and non-monetary contributions of each of the parties to the well being of the family and to the acquisition and care of the marital property.
Pensions and retirement plans are subject to the Equitable Distribution Statute to the extent that the same were accumulated during the course of the marriage of the parties.
South Carolina Spousal Support
Due to increasing changes in the law and in society, including changes in sexual equality, this area of the law of divorce is in the process of great change. Under recent changes in the law, the fault of a spouse in causing a divorce may not be a complete bar to obtaining spousal support, but the cause of separation will be a factor that the court will consider in determining whether or not to award spousal support.
Spousal support, when awarded, may be periodic and/or in a lump sum, the amount of which depends upon such factors as the respective ages, assets and earning potential of the parties and the duration and history during the marriage. Spouse support is not awarded to punish a guilty spouse but rather is to lessen the financial impact of divorce on the other spouse. In South Carolina adultery is an absolute bar to receiving alimony.
South Carolina Child Custody
This is the most crucial issue in most divorces. In determining the custody of minor (under eighteen) children, the court is guided by one standard–the best interests of the child. Custody will not be given to a parent as a reward or as punishment to the guilty parent but rather to the one most adaptable to the task of caring for the child and able to control and direct the child.
Other factors considered may include the age of the parent and child, the physical and mental condition of the parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live and the child’s wishes if the child is of sufficient age, intelligence and maturity to make such a decision. Custody may be changed if there is a marital change in circumstances.
The court will normally set visitation rights if the parents cannot voluntarily agree upon satisfactory arrangements. An important factor to the court in most custody cases is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children’s lives.
South Carolina Child Support
Normally the party not having custody will be called upon to contribute to the support of the minor child. This could be an obligation of the mother as well as the father, or both, if a third person has custody of the child. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay.
The use of the state Child Support Guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. It may be increased or decreased if a material change occurs in the circumstances of either or both of the parents of the child.