When going through a divorce, even if you think it will be a “friendly” divorce, it is important that you protect your privacy. In South Carolina, if one person to an in-person conversation or electronic communication, can record it. Your spouse may record any conversations they have with you. Make sure you take other precautions to protect your privacy during a divorce. At Klok Law, we recommend that you do not engage in social media while going through a divorce. What you post may seem innocent but in some circumstances, it can be misinterpreted and used against you. Change your passwords to one you would not normally choose. Your spouse probably knows you well and could guess your new password. We recommend using a Strong Random Password Generator. Disable any location sharing services on your mobile phone, double check those privacy settings. It just doesn’t happen to celebrities. In the well-publicized divorce of a famous musician power couple, the wife allegedly discovered her husband was cheating on her when she saw explicit texts and nude pictures between her husband and the nanny. Apparently, the family’s iPad and the husband’s phone were linked through iCloud. We have also seen this happen to couples in our own law practice.
WHAT HAPPENS AFTER I DECIDE TO GET A DIVORCE?
When going through a divorce or separation, many people find the process difficult. Life will no longer be the same. There are so many different emotions and affect every person in a different way. Just a few are guilt, shame, fear, anxiety, anger, revenge, and regret. To top it off most are overwhelmed. The legal process can be scary and tough to handle. The filing clerks can’t give you as you may try to muddle through the process. Dig in and find out information or book an appointment. Klok Law is your South Carolina divorce attorney and we are here to help.
You are searching for information and there is so much out there it is a challenge to break it down. Friends are giving you advice and share their divorce stories. Each story is different so you do not know what to expect for child support, spousal support and maintenance, or alimony. And who keeps the house?
Stop the sleepless nights! Klok Law will guide you through the basics.
HOW DO I GET DIVORCED?
In South Carolina, there are five grounds for divorce:
- Desertion for one year
- Physical Cruelty
- Habitual drunkenness (also includes narcotic drug use)
- Living separate and part without cohabitation for one year
See S.C. Code Ann. §20-3-10 . The reality is if one spouse wants a divorce, there is hardly anything you can do stop them. If the basis for a divorce is adultery, physical cruelty or habitual drunkenness, you do not have to wait the one year to file for divorce.
If you have to wait one year before you can divorce, you are not left high and dry. You can file an action for separate support and maintenance.
WHAT IS SEPARATE SUPPORT AND MAINTENANCE?
In South Carolina, there is no “legal separation.” Do not worry. Instead of filing for divorce, you can for separate support and maintenance where all the issues that you would raise in a divorce action will be ruled on by the family court except for the divorce itself. To qualify, you and your spouse must be living apart. You cannot live in the same house but in separate bedrooms. You have to have separate dwellings.
WHAT IS THE RESIDENCY REQUIREMENT FOR A SOUTH CAROLINA DIVORCE OR SEPARATE SUPPORT AND MAINTENANCE?
In order to file for divorce in South Carolina, you must meet one of these conditions:
The plaintiff must have resided in South Carolina for at one year before filing, or
If the plaintiff is a non-resident, then the defendant must have resided in South Carolina for at least one year before filing, or
If both parties are residents of South Carolina, the plaintiff must have resided in South Carolina for three months before filing.
As to active service military members stationed in South Carolina, you are treated as a “resident” or “resided” in South Carolina regardless of your intent to permanently remain in South Carolina or not.
WHERE DO I FILE?
In South Carolina, if you file for divorce, or for separate support and maintenance, you must file:
- In the county where the defendant resides at the time you file, or
- In the county where the plaintiff resides if the defendant is a non-resident or cannot be found after due diligence, or
- In the county in which the plaintiff and defendant last resided together as husband and wife unless the plaintiff is a non-resident (unless the plaintiff is a non-resident, then in the county in which the defendant resides).
DOES SOUTH CAROLINA HAVE COMMON LAW MARRIAGE?
The South Carolina legislature recognizes common law marriage. See S.C. Code Ann. §20-3-260. A common law marriage is the same as any other marriage in South Carolina. There is no time period requirement to create a common law marriage. You do not need to wait seven years, or any other period of time. You can be common law married after one day or after thirty years. A common law marriage is formed when:
- Both parties must intend to be married to each other and have “a mutual understanding of each party’s intent.”
- There must be no impediment to marriage, meaning you cannot be married if you are already married to someone else or you marry your brother or sister.
- The parties live together.
- The parties hold themselves out to the public that they are married.
IS MILITARY DIVORCE ANY DIFFERENT?
A military divorce has special considerations and is different from other kinds of divorce in South Carolina. For example, the Servicemembers Civil Relief Act will apply. In that case, the court may delay the action for not less than ninety days. However, a Servicemember may not delay the proceedings indefinitely.
WHAT IS COLLABORATIVE DIVORCE?
In a collaborative divorce, both parties have attorneys focusing on resolving divorce, child custody, support, and division of marital property and debt without litigating issues in court. It is a team approach that can include other professionals besides attorneys. The team members can include divorce coaches, financial neutrals and child specialists. A fundamental part of collaborative divorce is that all the parties agree that if they cannot resolve the issues and decide to litigate the issues in family, their existing lawyers will not represent them in litigation. If collaborative law is for you Klok Law is collaboratively trained and certified.
WHAT IS COOPERATIVE DIVORCE?
Cooperative divorce is very similar to collaborative divorce. The key difference is that if the parties cannot agree they are not required to find and pay a new lawyer. Changing representation is expensive and takes time to find another good fit with an attorney. Cooperative divorce is focused on resolution and not litigation but affords you the flexibility of going to court to resolve issues, if needed.
When you reach the end of your rope, call or book online with Klok Law. We are your trusted South Carolina divorce attorneys.
WHY AN ATTORNEY SHOULD DRAFT YOUR PARENTING PLAN
Parenting Plans need to be detailed. Make sure your parenting plan has a detailed schedule. Don’t just say “liberal visitation”. There is no liberal visitation definition and you may end up fighting. Contemplate how the parenting plan will change as the children grow up. What works for elementary children will probably not work for high school students. Be proactive. Address moving and parenting time. Many couples end up in court when one parent is moving.
OTHER IMPORTANT DETAILS TO CONSIDER
Outline rules for travel outside of the county as well for travel within the United States, including passport applications, etc. Take into account expenses for future orthodontics and eye care and allocate the expenses. Consider a requirement that the parties mediate before going to court. Also, don’t forget to include periodic review of child support.
There are many different ways to approach a marital property settlement. Be open to negotiations, refusing to negotiate can be expensive. Most family court matters are resolved through settlement. Your offer should be what you think is the best you can get in court, then go from there. Keep your emotions out of it! Focus on the financials and the facts. Don’t try to hide assets. Consider mediation if you get stuck.
Remember that when property is divided by the court it is suppose to be fair, not necessarily equal. It is best for divorcing couples to divide up the property themselves. Start by listing the belongings and value the property. Agree on the value of anything that is not valued more than $100. Remember that used furniture is not worth how much you paid for it unless it is an antique. Some things may make sense to go to one spouse instead of the other spouse. Start with the larger items and go down. If you get stuck, flip a coin. Also, you can agree to sell it.
In South Carolina, the Court will equitably apportion marital property at the time the marital litigation is filed. There are several factors the court will weigh in its apportionment of marital property:
(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;
(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:
(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement; or
(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in 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;
(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;
(5) the health, both physical and emotional, of each spouse;
(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses’s income potential;
(7) the nonmarital property of each spouse;
(8) the existence or nonexistence of vested retirement benefits for each or either spouse;
(9) whether separate maintenance or alimony has been awarded;
(10) 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;
(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;
(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;
(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;
(14) child custody arrangements and obligations at the time of the entry of the order; and
(15) such other relevant factors as the trial court shall expressly enumerate in its order.
Agreements to waive child support are only enforceable if they are approved by a family court judge. Don’t rely on oral agreements to waive child support, or written agreements that have not been approved by a family court judge.
Most courts will require that the parents provide health care insurance for their children, in addition to paying co-pays, deductibles and non-covered expenses. The South Carolina Child Support Guidelines take into account the amount the parent pays for health insurance premiums for the children.
In South Carolina, Child Support Orders are only modified if there has been a substantial change in circumstances. FMLA situations are usually temporary in nature and would not be considered a substantial change in circumstances.
If you are receiving TANF (Temporary Assistance for Needy Families) DSS will automatically apply for child support services to you. Through the South Carolina Department of social Services Division (CSSD), any parent who has physical custody and needs help obtaining child support may apply for services. A non-custodial parent may apply to have paternity established. If you are not receiving TANF, you are charged $25.00 a year after $500.00 in child support has been collected.
When filing for divorce or Separate Support and Maintenance, the court may grant temporary spousal support in the amount the court deems appropriate based on the circumstances. “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.” See S.C. Ann. Code §20-3-130(A). The court will consider the same factors as it does for alimony.
In South Carolina, a ex-spouse no longer has to pay periodic alimony if their former spouse remarries or the supported spouse continuously cohabitates with another. “Unless otherwise agreed to in writing by the parties, “continued cohabitation” means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.” See S.C. Ann. Code §20-3-130(B)
South Carolina courts use the same mechanism to enforce any provision in a divorce decree to enforce parenting time. If a parent does not return the child when required by the court order, the other parent may file a Rule to Show Cause that the other parent should be held in contempt of court. The same penalties apply: “…imprisonment in a local detention facility for one year, a fine of fifteen hundred dollars, or public works sentence of more than three hundred hours, or any combination of them.” S.C. Ann. Code §63-03-620
In South Carolina, family court orders can be enforced through contempt of court resulting in punishment “by a fine, by a public works sentence, or by imprisonment in a local detention facility, or by any combination of them, in the discretion of the court, but not to exceed imprisonment in a local detention facility for one year, a fine of fifteen hundred dollars, or public works sentence of more than three hundred hours, or any combination of them.” S.C. Ann. Code §63-03-620 If your ex-spouse violates your divorce decree, you can file a Petition for Rule to Show Cause why your ex-spouse should be held in contempt of court. The Rule to Show Cause must be verified or filed with an affidavit in support.
There may be times when circumstances have changed and one of the parties, or both, want to modify an existing court order of custody and/or support. You can file for a Modification of Child Support, Modification of Alimony, and/or Modification custody/visitation. A final order on the distribution of marital property is not subject to modification. S.C. Ann. Code §20-3-620(C)
“Any child present within this State at the time the petition for adoption is filed, irrespective of place of birth or place of residence, may be adopted.” S.C. Ann. Code §63-9-50
South Carolina residents may adopt children in South Carolina family court. ‘”South Carolina resident” means a person who has established a true, fixed principal residence and place of habitation in this State, and who intends to remain or expects to return upon leaving without establishing residence in another state. Temporary absences for short periods of time do not affect the establishment of residency.’ S.C. Ann. Code §63-9-30(9)