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FAMILY LAW
IN SOUTH CAROLINA - FREQUENTLY ASKED QUESTIONS
How
long does it take to get a divorce in South Carolina?
90
days for a divorce based on fault, or 12 months for one year's
continuation separation. Under South Carolina law, there are
several grounds for a divorce:
(1)
Adultery;
(2)
Desertion for a period of one year;
(3)
Physical cruelty;
(4)
Habitual drunkenness or drug use; or
(5)
Living separate and apart without cohabitation for a period of one
year.
For
reasons (1) through (4), no final decree of divorce can be granted
sooner than 90 days after the case is filed. For reason (5), the
divorce may be granted after the defendant has answered the
complaint for divorce or the defendant is in default for failing to
answer the complaint for divorce.
As
a practical matter, it may take months or years before a final
divorce is ordered by the court. In cases involving such issues as
adultery, physical cruelty, etc., the parties may engage in
"discovery" of each other's cases by taking depositions of each
other or witnesses, or obtaining documents or other prepared
materials such as photographs, financial records, etc. This process
of discovery can take many months before the case is ready to go to
trial. Further, even when the parties and their lawyers are ready to
go to trial, the court docket is often full of many other cases
filed before your case and waiting to be heard by the court. The
bottom line is, even in a simple, uncontested case for divorce, it
may take many months before you get a final decree.
In
divided property in a divorce case, is it true that the court
usually splits the property 50/50?
No.
Each case is unique in its facts, and therefore it is not possible to
determine beforehand what split the court will make. In determining
how to divide property between the parties, the court generally
looks at the following factors:
(1)
the duration of the marriage;
(2)
the age of the parties;
(3)
the physical and emotional condition of each spouse;
(4)
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;
(5)
the employment history and earning potential of each spouse;
(6)
the standard of living established during the marriage;
(7)
the current and reasonably anticipated earnings of both spouses;
(8)
the current and reasonably anticipated expenses and needs of both
spouses;
(9)
the marital and non-marital properties of the parties;
(10) 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;
(11) marital misconduct or fault of either or both parties if the
misconduct affects or has affected the economic circumstances of the
parties, or contributed to the breakup of the marriage;
(12) the tax consequences to each party as a result of the
particular form of support awarded;
(13) the existence and extent of any support obligation from a prior
marriage or for any other reason of either party; and
(14) such other factors the court considers relevant (this last
factor is a "catch-all" factor that allows the court to consider any
matter it deems important and appropriate).
As one
can see from the number of factors considered by the court in
dividing property, it is no easy task for the court, or for the
parties' attorneys, to determine who should get what and in what
amount.
How
does the court determine the amount of child support I must pay?
Child support is calculated using the parties' gross income and
certain child-related expenses that are plugged into a mathematical
formula which is set forth in the South Carolina Child Support
Guidelines. These guidelines, however, are not etched in stone.
In other words, upon a showing of special circumstances, the court
may order a party to pay more or less than what is calculated under
the guidelines. For example, if you do not have custody of your
child and you must travel from out-of-state in order to exercise
your rights of visitation, the court may order you to pay less than
the guidelines due to the extra expense of travel and lodging
incurred by you to see your child.
I
want custody of my children in the divorce (or to get custody back
from my ex-spouse). How does the court decide who gets custody?
By
determining what is in the child's best interest. Like division of
martial property, each case turns on its own set of facts and
circumstances. Typically, the court looks at many factors to award
custody, such as the child's wishes (if the child is old enough to
convey his or her desires), the needs of the child, the ability of the
parents to provide a stable home environment, the child's educational
needs, and the character and fitness of each parent (such as criminal
records and a history of drug and alcohol abuse). In making a
determination, the court may order that the child be appointed a neutral
third party, known as a guardian ad litem, to make a recommendation to
the court as to what is in the child's best interests. The guardian ad
litem will meet with the child and each parent, the child's family
members and teachers, and other witnesses. Additionally, the court, the
guardian ad litem, or the parties may request that a licensed
professional prepare a "custody evaluation" based, in large part, on the
psychological profiles of the parents and their motivations for custody.
Additionally, the guardian ad litem may request that court appoint an
attorney to represent him or her in the trial of the case. Importantly,
in addition to paying attorney fees, the parties may be required to
split the cost of the guardian ad litem's fees and the fees of the
guardian's attorney.
If your
ex-spouse previously received custody by agreement or by court order, to
change custody you must show there has been a material change in
circumstances that now impacts on the child's best interests. For
example, if your ex-spouse is exposing the child to a live-in lover, has
abused the child mentally or physically, or is abusing drugs or alcohol,
the court may determine that a change of custody is in the child's best
interest.
Although
obtaining custody may be possible, you must be prepared for the
difficulties and expenses that lie ahead. In all, contested custody
cases are one of the more complex, time consuming, emotionally draining,
and expensive, forms of litigation.
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If you need help with a divorce, child custody, child
support, or other issues regarding family law, call the
Futeral Law Firm locally at (843) 284-5500, toll free at
(877) 913-5500, or email
info@charlestonlaw.net.
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Disclaimer
The contents of this web site are for informational purposes regarding legal
issues in South Carolina and are not intended to convey detailed legal advice on
specific issues. Transmission of the information contained in this site or any
sites linked hereto is not intended to create, and receipt does not constitute,
an attorney-client relationship. Our attorneys practice law only in
jurisdictions we are properly authorized to do so and do not seek to represent
anyone in any jurisdiction where this site does not comply with applicable laws
and bar rules. The attorneys of the Futeral Law Firm are
licensed to practice law in the State of South Carolina. Readers should not act
upon the information contained in this site without first seeking the advice of
an attorney licensed to practice in your area.
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