Divorce in South Carolina

Residency Requirements and Grounds for Divorce

Residency Requirements and Grounds for Divorce

To file for divorce in South Carolina, either you or your spouse must be a resident of South Carolina for at least one year unless both of you are residents, and then the requirement is three months. You must wait 90 days from the time of filing for a divorce to the time of your final decree of divorce.

There is one no-fault ground and four additional fault grounds upon which to obtain a divorce in South Carolina. The no-fault ground is based on living separate and apart for one year. The four fault grounds are:

Adultery
Alcoholism and/or drug addition
Physical abuse or reasonable apprehension of physical abuse
Willful desertion for one year

The legal divorce process 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 does not 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" will be divided "equitably" when you divorce. Marital property is all jointly owned property and all other property, except "separate property," acquired by either spouse during your marriage and up to the time of your separation.

Not all property is considered marital property, some property is considered "separate property," which is property owned by one party at the time of your marriage or it is inheritance property or gifts. Each spouse is entitled to keep his or her separate property including property:

Acquired prior to marriage
Acquired by gift or inheritance
Acquired in exchange for non-marital property
Acquired due to an increase in the value of any non-marital property

In deciding how to divide the marital property, judges will consider various factors, including:

The duration of the marriage together with the ages of each spouse at the time of the marriage and at the time of the divorce
Any marital misconduct
Value of marital property
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
Any vested retirement benefits
Whether alimony has been awarded
Desirability of awarding family home to spouse that has custody of any children
Tax consequences of equitable apportionment
Existence of any support obligations from a prior marriage
Liens or other encumbrances upon marital property
Child custody arrangements and obligations

An equitable distribution is not necessarily an equal distribution. The assignment of fault might make a difference in the division of the property 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.

It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see a South Carolina divorce lawyer can save you a lot of time and money.

Alimony

A court can order alimony to either party in South Carolina. The fault of a spouse in causing a divorce is not necessarily a complete bar to obtaining spousal support. Spouse support is awarded to lessen the financial impact of divorce on the other spouse. Spousal support may be periodic 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.

Child Support

Both parents have joint responsibility for child support. Generally the parent that does not have custody will be ordered to contribute to the support of the minor child. It may be either the mother or father or possibly both if a third party had custody of the child.

The South Carolina child support guidelines provide an amount of child support that is presumed correct unless one of the following factors makes that amount unjust 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
Alimony
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.

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