Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
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.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
To file for divorce, either the petitioner or the respondent must have resided in the state for at least one year before 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 before commencing the activity. The divorce papers must be filed with the court within the county where either spouse resides.
MANDATORY SEPARATION TERM – ONE YEAR
NO-FAULT DIVORCE
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 before filing for a no-fault divorce.
CONTESTED GROUNDS FOR DIVORCE (FAULT)
A divorce for cause may be granted on the following grounds:
- Adultery;
- Desertion for 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 one year.
PROPERTY DIVISION
The court shall make a final equitable apportionment between the parties’ marital property parties upon request by either party in the pleadings. Each spouse is entitled to keep their non-marital property, consisting of the property which was:
(1) acquired before 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 a written contract 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 the 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 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.
ALIMONY AND SUPPORT
In proceedings for divorce and 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 the case be just and permanently.
No alimony may be awarded to 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 approval of a property or marital settlement agreement between the parties.
Factors In Awarding Alimony 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 the need of each spouse for additional training or education 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 them 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 job must be of a limited nature;
- Marital misconduct or fault of either or both parties; The tax consequences to each party due to the particular form of support awarded, and such other factors the court considers relevant.
SPOUSE’S LEGAL NAME
Upon the granting of the final judgment of divorce or an order of separate maintenance, the court may allow a party to resume a former surname or the surname of a former spouse.
CHILD CUSTODY
In determining the child’s best interests, the court must consider the child’s reasonable preference for custody. The court shall weigh the preference based on the child’s age, experience, maturity, judgment, and ability to express a preference. Consideration is also given to the child’s religious faith and the evidence of physical or sexual abuse.
CHILD SUPPORT
In any proceeding for the award of child support, there is a rebuttable presumption that the award would result from the application of the South Carolina child support guidelines.
The court shall consider factors that 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
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. 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: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
