South Carolina Divorce Law And Family Resource
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in South Carolina have the authority to manage the divorce proceedings, including, spousal and child support payments, custodial rights of parents and the division of community property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making any important decisions about your marriage. You can also visit the GotTrouble Divorce Resource for a more in-depth understanding of related divorce and family law topics.
As of 2016, all states allow for “no fault” divorce. Yet many courts still factor in the respective parties past behavior when determining the division of community property, debts, custody, support and related issues.
SAME-SEX DIVORCE –UPDATE
On June 26, 2015, the US Supreme Court ruled that gay marriage is a right protected by the US Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: US Supreme Court Opinion: Obergefell v. Hodges. (For more information visit ProCon.org).
To file for divorce, either the petitioner or the respondent must have resided in the State for at least one year prior to filing. If both parties are residents of the State when the action is filed, the petitioner must have resided in the state for only three months prior to commencing the action. The divorce papers must be filed with the court within the county where either spouse resides.
MANDATORY SEPERATION TERM: ONE YEAR
NO-FAULT DIVORCE– IRRECONCILABLE DIFFERENCES:
South Carolina permits spouses to end their marriage by stating that there are irreconcilable differences between the parties. However the state does require that the spouses had lived separate and apart without cohabitation for at least one year prior to filing for no-fault divorce.
CONTESTED GROUNDS FOR DIVORCE – DIVORCE BASED ON FAULT:
A divorce for cause may be granted on the following grounds:
- Desertion for a period of one year;
- Physical cruelty;
- Habitual drunkenness, including habitual drunkenness caused by the use of any narcotic drug; or
- 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. [
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 to the following factors:
- The duration of the marriage together with the ages of the parties;
- Marital misconduct or fault of either or both parties;
- 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;
- The income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;
- The health, both physical and emotional, of each spouse;
- The need of each spouse or either spouse for additional training or education in order to achieve that spouse’s income potential;
- The non-marital property of each spouse;
- The existence or nonexistence of vested retirement benefits for each or either spouse;
- Whether separate maintenance or alimony has been awarded;
- 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;
- The tax consequences to each or either party as a result of any particular form of equitable apportionment;The existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;
- Such other relevant factors as the trial court shall expressly enumerate in its order.
In proceedings for divorce 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:
- The formal signing of a written property or marital settlement agreement or
- 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.
Factors To Determine In Awarding Alimony Maintenance And Support:
In making an award of alimony, maintenance and support, the court must consider the following factors:
- The duration of the marriage;
- The age of each spouse, including physical and emotional condition;
- 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;
- The employment history and earning potential of each spouse;
- The standard of living established during the marriage;
- The current and reasonably anticipated expenses and needs of both spouses;
- The marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
- 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;
- Marital misconduct or fault of either or both parties; The tax consequences to each party as a result of the particular form of support awarded, and such other factors the court considers relevant.
SPOUSE’S LEGAL 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.
CHILD CUSTODY – BEST INTEREST OF THE CHILD:
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.
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. The court shall consider 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 modification of an existing order. If you need help receiving your child support reach out to South Carolina Child Support Services.
ENFORCING SOUTH CAROLINA CHILD SUPPORT ORDERS – FEDERAL OPTION:
FIND LOCAL FEDERAL ENFORCEMENT AGENCY NEAR YOU