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Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 25-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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Divorce & Family Law Summary
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.
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
- 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
Watch S.C.Divorce Lawyer Chris Archer Discuss The Division of Marital Property:
Alimony – Support
Alimony, also known as spousal support or spousal maintenance, is designed to provide financial assistance to a spouse after a divorce, recognizing that one spouse may have become financially dependent on the other during the marriage.
Alimony is awarded when the supported spouse is unlikely to become self-supporting or when a substantial disparity in income and earning potential will continue indefinitely.
South Carolina courts consider a wide range of factors when determining the type and amount of alimony, including:
- Duration of the marriage: Longer marriages generally result in greater alimony awards.
- Marital misconduct: Adultery, physical abuse, or other misconduct can significantly impact the alimony award. South Carolina is an “at-fault” divorce state, meaning marital misconduct can be a determining factor.
- Each spouse’s earning capacity and current income: The court looks at both the current financial situation and the potential for future earnings.
- Education and skills of each spouse: This relates to their ability to become self-supporting.
- Health and age of each spouse: These factors can affect earning capacity.
- Lifestyle established during the marriage: The court may consider maintaining a reasonable standard of living, although this is less of a factor in shorter marriages.
- Contributions of each spouse to the marriage: This includes financial contributions, as well as non-financial contributions like homemaking and childcare.
- Tax implications: Alimony payments are generally deductible for the payor and taxable for the recipient.
Modification and Termination of Alimony:
Alimony orders can be modified or terminated upon a showing of a substantial change in circumstances. Common examples include remarriage or cohabitation of the supported spouse, a significant increase or decrease in either spouse’s income, or changes in health.
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
Spouses 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.
Sources and References
Cornell Law Institute – Divorce
