It can be a very emotional and stressful time when a marriage reaches a point in which one party (or both parties) are considering a divorce. No matter the circumstances, it never seems to be an easy, painless task. To file for a divorce in South Carolina, there are several steps that need to be taken.
In South Carolina, there are five grounds for divorce:
1. Separation for a minimum of one year.
3. Physical Cruelty
4. Habitual Drunkenness (can be alcohol or narcotic drugs).
The court requires proof in order to grant a divorce based on these grounds and depends on the individual circumstances. A family court judge is required by law to make a specific finding that reconciliation between the two parties is not possible before granting a divorce.
When the two married parties have separated but do not have grounds for divorce, they can apply to the court for the right to live separate and apart. This action is called “separate maintenance and support.” This is essentially a claim for spousal support. If there is alimony, child support or child custody to be deemed appropriate, the court can also deal with equitable division of marital property at this time. When calculating the time of separation, separation begins on the date that the spouses are no longer living together. There are also factors that can cause the time of separation to be restarted, or erased. This is something a party should discuss with his/her attorney.
Often, spouses are able to work together and decide issues without court intervention. When this happens the attorneys for each side will be able to present the agreement to the court and request the judge approve the agreement. A judge can then sign the agreement allowing become an official court order If the court finds the agreement to be fair, reasonable and voluntary.
If the spouses are not able to agree on the division of the marital property, the family court will make that decision. All assets, debts acquired during the marriage are usually considered marital property. Spouses are encouraged to provide their lawyer with a list of all assets and when/how they acquired them. Other documents such as recent tax returns, insurance policies, etc. are also helpful for the attorney when attempting to make a determination on the appropriate request of the court. The court will consider the financial and other contributions and conditions of the parties when making a decision on how to award the property.
When parents cannot come to an agreement on the custody of their minor children the court must also decide this. Custody litigation can be a very expensive and emotional procedure. Parents should realistically look at their new/current living conditions, time available for the children and other factors when attempting to decide which parent could provide the better living situation for the minor children. Since neither parent automatically has a legal right to custody in South Carolina, the court will always consider the best interest of the children. The court may order joint or “shared” custody. If a child has reached the appropriate age or level of maturity, he/she may express the preference to the judge. The preference is not controlling but instead just a factor for the judge to consider. Minor children may be appointed a guardian ad litem to represent them.
Either spouse may be entitled to alimony (spousal/monetary support). Alimony can be paid in installments or in a lump sum. The family court can also award short term alimony to help a spouse gain additional job skills that could help them be supportive.
Both parents have a legal responsibility to provide economically for the children and the court will see to it that each do so. When determining the appropriate amount of child support, the court will use the Child Support Guidelines that provide a calculation based on the gross income of each parent. The court can allow the parents to pay the child support directly or order them to pay through the clerk of court. South Carolina allows employers to garnish wages when it is for the support of a child.
To begin the process for divorce, a party (plaintiff) must serve a summons and complaint to the other party (defendant). The defendant then has 30 days after being served to respond by filing an answer and also to request any other relief. Mediation between the parties may be ordered by the court to attempt to resolve any issues. If the parties are unable to settle such issues, each side can present evidence at a trial to prove to the court why they should be granted the requested relief.
While parties may feel they can represent themselves in a divorce in South Carolina, it is highly recommended each party seeks the counsel of a South Carolina attorney. There are many factors that can play into the ruling of a divorce case and without proper representation, a party may very well suffer. Whether it is the convoluted process of the different court hearings or the assurance the different documents are filed correctly and asking for the requested and appropriate relief, it is essential each party seeks out a qualified attorney to assist with the divorce process.
For more information on divorce in South Carolina or if you would like Smith Ammons, LLC to assist you in your SC divorce feel free to contact us today.