Family Law Attorneys in Greenville, South Carolina
If you have made the decision to seek a divorce, then you have made one of the most difficult decisions that you will make. If you are still considering whether you want a divorce or are positive that you want to end your marriage, it will benefit you to talk to a family law attorney and know the essentials of South Carolina family law.
A divorce will allow each person to marry someone else and will assist the couple in dividing the assets and debts of the marriage.
In addition, the court in a divorce proceeding will determine the issues regarding children, including child custody, child support and visitation. Either party can obtain a divorce even if the other spouse does not consent to the divorce.
5 Grounds for Divorce in South Carolina
There are five (5) grounds for divorce in South Carolina, 4 of which are fault based grounds, and 1 which is a no fault divorce based on 1 year of continuous separation. Separation requires that the parties cannot live under the same roof.
- 1 year continuous separation
- physical cruelty
- habitual drunkenness (or narcotic drug use)
- desertion for more than one (1) year
Starting the divorce process
To begin the divorce process, one spouse must file a Summons and Complaint for divorce in the family court. A family court attorney or lawyer will generally prepare the documents to be filed with the family court.
In order to institute an action for divorce, the following must apply:
- If Plaintiff is a South Carolina resident, then the Plaintiff must have resided in South Carolina at least one (1) year prior to the commencement of the action or,
- If Plaintiff is a nonresident of South Carolina, then Defendant must have resided in South Carolina for at least one (1) year
- If both parties are residents of the State when the action is commenced, then the Plaintiff must have resided in this State only (3) three months prior to commencement of the action.
Actions for divorce or for separate support and maintenance must be tried in the county
- Where the Defendant resides at the time of the commencement of the action,
- Where the Plaintiff resides, if Defendant is a nonresident or after due diligence cannot be found, or
- Where parties last resided together as husband and wife unless the Plaintiff is a nonresident, in which case it must be brought in the county in which the Defendant resides.
Greenville, SC Family Law Attorney Info
Division of Property
In South Carolina family law cases, the family court divides marital property, the assets and debts you have acquired jointly during the marriage, at the time of divorce. Equitable division does not necessarily mean equal distribution, but it means fair distribution. However, there is some property that is considered non-marital. Examples of non-marital property include property acquired before your marriage, gifts or inheritance, and increases in the value of any non-marital property.
In determining how to divide marital property, the family court will consider many different factors including the following:
- How long you were married;
- Spouses age at the time of marriage and at the time of divorce;
- Marital misconduct of either or both of the parties if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage;
- Value of marital property and contribution of each spouse to the acquisition, preservation, depreciation or appreciation in the value of the marital property;
- Each spouse’s income and earning potential;
- Need for additional training or eduction to achieve earning potential;
- Each spouse’s physical and emotional health;
- Non-marital property of each spouse;
- Vested retirement benefits;
- Tax consequences;
- Award of the family home to the spouse with physical custody of children;
- Support obligations from a former marriage;
- Liens and encumbrances on marital property; and
- Child custody.
Family law judges make decisions based on the best interest of the child. Factors considered in making a child custody determination include the following:
- Temperament and developmental needs of the child;
- Capacity and disposition of the parents to meet and understand the needs of the child;
- Preferences of the child;
- Wishes of the parents as to custody;
- Past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
- Actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with family court orders.
- Manipulation by or coercive behavior of the parents in an effort to involve the child in the parent’s dispute;
- Any effort by one parent to disparage the other in front of the child;
- Ability of each parent to be actively involved in the life of the child;
- Child’s adjustment to his or her home, school, and community environments;
- Stability of the child’s existing and proposed residences;
- Mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
- Cultural and spiritual background;
- Whether the child or a sibling of the child has been abused or neglected;
- Whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
- Whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
- Other facts as the family court deems necessary.
In some cases, one spouse may wish to have child custody based on the marital indiscretion of the other spouse, but it is important to remember that marital indiscretion does not disqualify a spouse as an unfit parent. Also, a family law judge may consider the preference of an order child based on that child’s age, experience, maturity and judgment.
Parents can agree on the child visitation schedule; however, if parents cannot agree, then the family court will order a visitation schedule. If one parent willfully violates the terms of a visitation order, then that parent may be held in contempt by the family court.
The State of South Carolina in family law cases uses a formula, which accounts for several factors in determining the amount of child support. For general information concerning child support, you can use the child support calculator athttp://www.state.sc.us/dss/csed/calculator.htm. The guidelines consider each parent’s income, number of children, and day care and health insurance costs.
Either spouse may be awarded alimony pursuant to South Carolina family court laws. Alimony may be paid periodically or in a lump sum depending on the circumstances. The family court considers several factors in determining alimony, including the following:
- Duration of the marriage;
- Both spouses age at the time of the marriage and divorce or separate maintenance action;
- Each spouses physical and emotional condition;
- Each spouse’s educational background and each spouse’s need for additional training or education in order to achieve that spouse’s income potential;
- Each spouse’s employment history and earning potential;
- 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 non-marital properties or each spouse;
- Child custody;
- Tax consequences of alimony;
- Support obligations from a prior marriage;
- Any other factors the court deems relevant; and
- Marital misconduct or fault of either spouse;
- Regardless of whether it is used as a basis for divorce in a family court case?
- Has the misconduct affected the economic circumstances of the marriage or contributed to the breakup of the marriage?
- Has the misconduct occurred prior to the signing of a written property or marital settlement agreement?
While the divorce is pending, the family court may order temporary maintenance. An alimony order can only be modified by the family court if either spouse shows a change in circumstances.
South Carolina family courts can provide for several different types of alimony, including the following:
- Permanent, period alimony – This type of alimony ends on death of either spouse, remarriage of supported spouse or continued cohabitation of the supported spouse. This type of alimony can be modified based on a change of circumstances as determined by a family court judge.
- Lump sum alimony – This type of alimony involves a finite total sum to be paid in one installment or periodically over a period of time. This type of alimony cannot be modified and ends only on the death of the supported spouse.
- Rehabilitative alimony – This type of alimony terminates on the terms of the family court order, upon remarriage or continued cohabitation of supported spouse, or the death of either spouse.
- Reimbursement alimony – This type of alimony ends on remarraige or continued cohabitation of the supported spouse. Reimbursement alimony ends on death of either spouse.
Adultery – Adultery is an absolute bar to alimony.
Keep in mind that choosing the right lawyer to represent you is an important decision and that a skilled and experienced family court attorney or lawyer is an important part of making sure that your rights are protected. If you are seeking a divorce in Greenville, Spartanburg, Oconee, Anderson or Pickens counties, and you would like the assistance of a family court lawyer, give us a call today for your free initial consultation.