Residency Requirements and Grounds for Divorce
To file for divorce in South Carolina, either you or your spouse must be a South Carolina resident for at least one year; if you're both residents, and then the requirement is three months. It's a mandatory 90-day wait from the time you file for divorce until the time the final divorce decree is granted.
There is one no-fault ground and four additional fault grounds for divorce. The no-fault ground is based on living separate and apart for one year. The four fault grounds are:
- Alcoholism and/or drug addition
- Physical abuse or reasonable fear of physical abuse
- Willful desertion for one year
A divorce case begins when one spouse files a "Complaint for Divorce." You may file for divorce in the county where:
- Your spouse lives
- You live if your spouse doesn't live in South Carolina
- You and your spouse last lived together if you are both currently living in South Carolina
Dividing the Property
In South Carolina, assets and debts acquired during your marriage called "marital property" are divided "equitably" when you divorce. Marital property is all jointly owned property and all other property, except "separate property," acquired by either spouse during marriage and up to the time of a separation.
Not all property is considered marital property, some property is considered "separate property," which is property owned by a spouse at the time of marriage, or is received by inheritance property or gifts. Increases in value of separate property is included. Each spouse is entitled to keep his or her separate property.
In deciding how to divide the marital property, judges will consider various factors, including:
- Marriage duration and the spouses' ages when marriage and at divorce
- Marital misconduct
- Marital property value
- Income and earning potential of each spouse
- Physical and emotional health of each spouse
- Needs of each spouse for additional training of education to achieve that spouse's income potential
- Nonmarital property of each spouse
- Vested retirement benefits
- Alimony awards
- Desirability of awarding family home to spouse having custody of the couple's children
- Tax consequences of the property division
- Existing support obligations from a prior marriage
- Liens or other encumbrances upon marital property
- Child custody
An equitable distribution may not be an equal division. The assignment of fault can be a factor in property divisions in South Carolina. Pensions and retirement plans are subject to equitable distribution if they were accumulated during the course of the marriage by the spouses.
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a South Carolina divorce lawyer and it can save you a lot of time and money.
A court can order alimony to either spouse. The fault of a spouse in causing a divorce is not necessarily a complete bar spousal support. Support is awarded to lessen the financial impact of divorce, and can be paid in installments, such as each month, or in a lump sum.
In deciding whether to award alimony, a court will generally consider such factors as:
- Duration of the marriage together with ages of spouses at time of marriage and at time of divorce
- Physical and emotional condition of each spouse
- 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
- Employment history and earning potential of each spouse
- Standard of living established during marriage
- Current and reasonably anticipated earnings of both spouses
- Current and reasonably anticipated expenses and needs of both spouses
- Marital and nonmarital properties of each spouse
- Custody of the children
- Marital misconduct or fault of either spouse
- Tax consequences of support award
- Existence and extent of support obligation from a prior marriage
A court can order temporary maintenance while the divorce is pending. Once ordered, it can be modified only upon a showing of a "change in circumstances."
Child Custody and Visitation
In South Carolina, the court will make child custody decisions solely based upon the best interests of the child. The parents both have equal rights regarding an award of custody of their children.
In determining the best interest of the child, the court will consider several factors:
- Circumstances of the spouses
- Nature of the case
- Religious faith of parents and child
- Welfare of the child
- Best spiritual and other interests of the child
- Child's preference for custody based upon child's age, experience, maturity, judgment and ability to express preference
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. Custody may be changed if there is a major change in circumstances.
Visitation rights may be agreed upon by the parents but if they are unable to agree, the court will set visitation rights. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court by filing a "Petition for Modification." If it is in the best interest of the child, the judge may decide to modify the visitation order as well as order makeup visitation for the time missed.
Both parents have joint responsibility for child support. Generally the noncustodial parent pays child support.
The South Carolina child support guidelines provide an amount of child support that is presumed correct, and applies an income shares model based on both parents' incomes. A court can order a different amount based if the following factors renders the guidelines amount unfair or inappropriate:
- Educational expenses for child or spouse
- Equitable distribution of property
- Consumer debts
- More than six children
- Unreimbursed extraordinary medical or dental expenses of either parent or any child
- Mandatory retirement deductions of either parent
- Support obligations for other dependents
- Significant available income of child
- Substantial disparity of income
- Any agreement between the spouses
A South Carolina child support order can be modified if a material change occurs in the circumstances of either parent.
Questions for Your Attorney