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Grounds for Divorce |
Residency Requirement |
Burden of Proof |
Procedure at Hearings |
Other Professionals |
Division of Assets and Debts |
Alimony and Spousal Support |
Other Issues |
Grounds for Divorce
- In South Carolina, there are five different grounds for divorce: (1) Adultery, (2) Physical Cruelty, (3) Desertion for more than one year, (4) Habitual Drunkenness or Habitual Use of Drugs, and (5) Separation for a period of one year without cohabitation (sometimes referred to as a "no fault" divorce).
- If a party cannot prove any of the above-listed divorce grounds, he/she may still seek a legal separation, which is called Separate Maintenance in South Carolina. In an action for Separate Maintenance, the Court can still address many issues on a permanent basis, such as asset/debt distribution, alimony and spousal support, child custody, child support, and visitation, etc. However, the key difference between a divorce and a legal separation is that the parties are still married, but their relationship with is legally and specifically defined.
- Divorce and separation cases can be either contested or uncontested. Of course, contested cases tend to take longer, be more stressful on the parties, and end up being more expensive. However, most cases in Family Court (as in other courts) settle, but some settle much sooner than others. It is very important to have a qualified attorney advise you of your options based on the specific facts of your case as soon as possible so that you can make informed, intelligent decisions as to how best to proceed.
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Residency Requirement
- Before a party may file an action for divorce or separation, at least one of the parties must have been a resident of South Carolina for more than one year, or both spouses must have resided in South Carolina for at least three months.
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Burden of Proof
- Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by "clear and convincing" evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.
- It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds. For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen. In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient. In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.
- In rare cases, the Judge may not require corroborating evidence if he is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.
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Procedure at Hearings
- In South Carolina, all Family Court cases are decided by a Judge, not a jury. Typically, the only people present in the Courtroom are the lawyers, the parties themselves, the Judge, the court reporter, and sometimes the witnesses. However, witnesses can be (and frequently are) required to remain outside the Courtroom until after they have testified.
- In rare cases, children can sometimes be witnesses in Family Court cases. In such cases, the child must be of sufficient age or awareness that his/her testimony will be believed. However, most experts agree that it is never good for a child to testify in Court, and it may lead to serious psychological damage later in addition to permanently injuring the relationship between the child and one or both parties. In some cases, the Judge may agree to talk with a child in Chambers, but most Judges do not except in rare, extreme circumstances. Usually, the child’s position in a case is represented through a Guardian ad Litem, who is appointed to protect the child’s interests.
- Most contested cases consist of at least two Court hearings. The first hearing is called a temporary or motion hearing, and the second hearing is called a final or merit hearing.
- At the temporary hearing, the Court determines how the issues in that specific case will be addressed between that date and the final hearing. Each attorney briefly states his client’s position, and each side presents Affidavits (written statements from the parties and witnesses) to support his client’s position. There is usually no “live” testimony given by the parties at the temporary hearing. The Judge usually makes a decision after reading the pleadings and affidavits. However, some Judges do not read the Affidavits and some Judges do not give the attorneys much opportunity to argue their client’s position at this hearing. Some Judges make decisions at the hearing, and others take the matter under advisement and let the parties know their decision later. The specific procedure in temporary hearings tends to vary slightly from Judge to Judge, case to case, and even from day to day.
- At the final hearing, each side presents witnesses to testify as to the facts of the case. Each party is allowed the necessary amount of time to testify and to present his/her evidence about the case. Final hearings can last anywhere from 15 minutes to several days, depending on what facts are at issue in that particular case.
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Other Professionals
- Depending on what issues are involved in a given case, it is sometimes necessary or desirable to hire other professionals to assist with the particular issues in that case.
- The professionals most commonly used in Family Court cases are private investigators. Not only can these professionals be very helpful in obtaining information about a spouse’s misconduct, they are also helpful with many different types of issues in child custody and visitation cases.
- Mental health counselors are also helpful in many cases. These professionals can include psychiatrists, psychologists, licensed social workers, and custody evaluators, and their services provided range widely and include psychological evaluations, anger management, conflict resolution, child counseling, domestic violence, and parenting issues.
- If parties cannot agree on the value of an asset, it may be necessary to hire an appraiser. Typically, the first type of appraiser that comes to mind is a real estate appraiser. However, there are also professional appraisers who can value anything from antiques, equipment, furniture, or collections to retirement accounts.
- Accountants are used in many Family Court cases when difficult financial issues arise. The most common areas in which an accountant can be beneficial are (a) determining the income of a self-employed individual, (b) valuing a retirement account, and (c) determining the value of a business entity.
- If you are interested in consulting with any of these types of professionals, our firm will be glad to refer you to a qualified professional. We strive to do everything we can to ensure that our clients receive excellent service from us and other professionals with whom we work.
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Division of Assets and Debts
- In a divorce or separation action, the marital estate (which consists of marital assets and marital debts) will be equitably divided between the parties.
- “Marital assets” are those that have been acquired by either party during the marriage with marital funds. Typically, it does not matter whether the asset is titled in the husband’s name, the wife’s name, or both names.
- “Non-marital assets” can include assets owned by either party prior to the marriage, gifts made to either party, and inheritances. Typically, non-marital assets are not subject to equitable distribution. However, it is possible for non-marital assets to become marital assets under certain circumstances.
- “Marital debts” are debts incurred during the marriage for a marital purpose.
- Although the marital estate is divided approximately equally between the parties in most cases, the Court is not required to make a 50/50 allocation. The Court looks at all of the factors in each case, such as contributions made by each party, whether direct (financial) and indirect (services), the length of the marriage, any marital misconduct by either party, and many other factors.
- It is important to consult with an experienced attorney to find out what items will and will not be included in the marital estate and what portion you might expect to receive. Should you fail to take reasonable steps to protect your interests, you could permanently waive your interest in certain marital assets, be saddled with excessive marital debt, or both.
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Alimony and Spousal Support
- In many cases, one spouse may be required to make alimony payments to the other spouse in addition to other financial obligations, such as child support or the division of the marital estate. There are many factors that the Court must consider in determining whether or not to award alimony and in what type and amount.
- There are many different types of alimony in South Carolina, including permanent periodic alimony, rehabilitative alimony, and lump sum alimony. These types of alimony all have different characteristics, and it is possible to receive more than one type of alimony in the same case.
- Certain circumstances can prevent a spouse from receiving any alimony or may terminate certain types of alimony prematurely. For instance, a spouse who commits adultery may be prohibited from receiving any alimony.
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Other Issues
- Order for Protection from Domestic Abuse
- Restraining Orders to prevent harassment and/or to protect and preserve the marital estate
- Name Changes
Don’t live with needless emotional stress and anxiety any longer. Contact Stevens MacPhail, P.A. today to schedule an appointment with one of our attorneys to discuss your situation, find out what your options are, and learn how to protect yourself and your interests. Waiting another day is not the solution.
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