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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS:

When both spouses are residents of the state when the action is filed, the plaintiff must have resided in this State for only three months prior to commencement of the action. When only one spouse resides in the state, the plaintiff must have resided in this State for at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have so resided in this State for this period. Papers shall be filed in the Court of Common Pleas in the county where either spouse resides. [Based on South Carolina Code of Laws Section 20-3-30 and 20-3-60]

GROUNDS FOR DIVORCE: A divorce may be granted only on the following grounds:

1. Adultery;

2. Desertion for a period of one year;

3. Physical cruelty;

4. Habitual drunkenness, including habitual drunkenness caused by the use of any narcotic drug; or

5. On the application of either party if or when the husband and wife have lived separate and apart without cohabitation for a period of one year. [Based on South Carolina Code of Laws Section 20-3-10]

SEPARATION: In all actions for separate support and maintenance, legal separation, or other marital litigation between the parties, allowances of alimony and suit money and allowances of alimony and suit money pendente lite shall be made according to the principles controlling such allowance and actions for divorce. [Based on South Carolina Code of Laws Section 20-3-140]

PROPERTY DIVISION: The court shall make a final equitable apportionment between the parties of the parties' marital property upon request by either party in the pleadings. Each spouse is entitled to keep his or her non-marital property, consisting of property which was: (1) acquired prior to the marriage; (2) acquired by gift or inheritance; (3) acquired in exchange for non-marital property; or (4) was acquired due to an increase in the value of any non-marital property; and (5) property that is excluded from marital property by written contact of the parties. In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

1. the duration of the marriage together with the ages of the parties;

2. marital misconduct or fault of either or both parties;

3. the value of the marital property. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

4. the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

5. the health, both physical and emotional, of each spouse;

6. the need of each spouse or either spouse for additional training or education in order to achieve that spouse's income potential;

7. the nonmarital property of each spouse;

8. the existence or nonexistence of vested retirement benefits for each or either spouse;

9. whether separate maintenance or alimony has been awarded;

10. the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

11. the tax consequences to each or either party as a result of any particular form of equitable apportionment;

12. the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

13. liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

14. child custody arrangements and obligations at the time of the entry of the order; and

15. such other relevant factors as the trial court shall expressly enumerate in its order.

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: In proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support, the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, and permanently. No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:

1. the duration of the marriage;

2. the age of each spouse, including physical and emotional condition ;

3. the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;

4. the employment history and earning potential of each spouse;

5. the standard of living established during the marriage;

6. the current and reasonably anticipated expenses and needs of both spouses;

7. the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;

8. custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;

9. marital misconduct or fault of either or both parties;

10. the tax consequences to each party as a result of the particular form of support awarded;

11. the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and

12. such other factors the court considers relevant. [Based on South Carolina Code of Laws Section 20-3-130]

SPOUSE'S NAME: The court, upon the granting of final judgment of divorce or an order of separate maintenance, may allow a party to resume a former surname or the surname of a former spouse. [Based on South Carolina Code of Laws Section 20-3-180]

CHILD CUSTODY: In any action for divorce from the bonds of matrimony the court may at any stage of the cause, or from time to time after final judgment, make such orders touching the care, custody and maintenance of the children of the marriage and what, if any, security shall be given for the same as from the circumstances of the parties and the nature of the case and the best spiritual as well as other interests of the children may be fit, equitable and just.

In determining the best interests of the child, the court must consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference. Consideration is also given to the religious faith of the child, and the evidence of physical or sexual abuse. [Based on South Carolina Code of Laws Section 20-3-160 and 20-7-1515 through 20-7-1530]

CHILD SUPPORT: In any proceeding for the award of child support, there is a rebuttable presumption that the amount of the award which would result from the application of the South Carolina child support guidelines required under Section 43-5-580(b) is the correct amount of child support to be awarded. The court shall consider the following factors which may be possible reasons for deviation from the guidelines or may be used in determining whether a change in circumstances has occurred which would require a modification of an existing order: (1) educational expenses for the children or the spouse; (2) equitable distribution of property; (3) consumer debts; (4) families with more than six children; (5) unreimbursed extraordinary medical or dental expenses; (6) mandatory deduction of retirement pensions and union fees; (7) support obligations for other dependents living with the noncustodial parent or noncourt ordered child support from another relationship; (8) child-related unreimbursed extraordinary medical expenses; (9) monthly fixed payments imposed by a court or operation of law; (10) significant available income of the child or children; (11) substantial disparity of income in which the noncustodial parent's income is significantly less than the custodial parent's income, thus making it financially impracticable to pay what the guidelines indicate the noncustodial parent should pay; (12) alimony; (13) agreements reached between party

HOW TO ENFORCE CHILD SUPPORT IN SOUTH CAROLINA – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF SOUTH CAROLINA:

http://www.scstatehouse.net/code/t20c003.htm