Whether you live in South Carolina or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If one of them will be unable to be self-supporting after the divorce, the issue of alimony may arise. If there are minor children, they will also need to resolve issues of child custody and support.
Residency and where to file
In order to file for divorce in South Carolina, provided that both parties are residents of the state, the plaintiff must be a resident of South Carolina for at least 3 months. Otherwise, either the plaintiff or the defendant must be a resident for at least 1 year. If both parties are South Carolina residents, you may file in the Circuit Court or Family Court of the county where the defendant resides, or the county where the parties last lived together. If the defendant is not a South Carolina resident, you may file in the county where the plaintiff resides.
Procedures
The simplest procedure is an uncontested divorce where you and your spouse can reach an agreement about all issues. You begin by filing a Complaint for Divorce, along with various supporting documents. For an uncontested divorce, one of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.
Grounds for divorce
Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. South Carolina, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds. To get a no-fault divorce in South Carolina you need to state in the Complaint for Divorce that “the parties have been living separate and apart without cohabitation for one year.”
The fault-based grounds for divorce are: adultery, alcoholism or drug addiction, physical cruelty, and desertion for one year. However, in most cases (unless you don’t want to wait for one year of separation for a no-fault divorce), there is no reason to use any of the fault-based grounds, since they add complexity to the process by requiring proof.
Property division
A divorce involves dividing property and debts between you and your spouse. Generally, each party will keep his or her nonmarital property, which is property:
- acquired by inheritance, or by gift from a party other than the spouse
- acquired before the marriage
- acquired after a temporary order, after the signing of a written property settlement agreement, or after a permanent order of separate maintenance and support
- acquired in exchange for property described in items (1) through (3) above
- excluded by a written contract of the parties
- representing an increase in value of nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other party during marriage
All other property is marital property. Absent an agreement of the parties, the court will divide the property, after considering the following factors:
- 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
- any party’s marital misconduct or fault, if it affected the economic circumstances of the parties, or contributed to the breakup of the marriage
- the value of marital property, and each party’s contribution to its acquisition, preservation, depreciation, or appreciation, including any contribution as homemaker
- each party’s income, earning potential, and opportunity for future acquisition of capital assets
- each party’s physical and emotional health
- each party’s need for training or education to achieve that party’s income potential
- the nonmarital property of each party
- the existence or nonexistence of vested retirement benefits for each party
- whether separate maintenance or alimony has been awarded
- the desirability of awarding the family home, or the right to live in it for reasonable periods, to the party having custody of any children,
- the tax consequences to each party
- any support obligations from a prior marriage of either party,
- any encumbrances on marital property, or upon the separate property of either party, and any other existing debts incurred during the marriage
- any child custody arrangements and obligations, and
- (any other relevant factors as determined by the court
Alimony in South Carolina
Alimony may be awarded “in such amounts and for periods of time … as the court considers just.” Alimony (except for lump sum alimony) terminates if the party receiving it remarries or engages in “continued cohabitation” (where the party “resides with another person in a romantic relationship for a period of ninety or more consecutive days,” or for less time if “the two periodically separate in order to circumvent the ninety-day requirement”). Absent an agreement of the parties, the judge will determine the issue after considering the following factors:
- 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
- the physical and emotional condition of each party
- each party’s educational background, together with need of each party for additional training or education in order to achieve that party’s income potential
- each party’s employment history and earning potential
- the standard of living established during the marriage
- each party’s current and reasonably anticipated earnings
- the current and reasonably anticipated expenses and needs of both parties
- the marital and nonmarital properties of the parties
- whether it is appropriate that the custodian of any children not be required to seek employment outside the home, or where the employment must be of a limited nature
- any marital misconduct or fault of either or both parties, if it has affected the economic circumstances of the parties, or contributed to the breakup of the marriage
- the tax consequences to each party
- the existence and extent of any support obligation from a prior marriage, and
- such other factors the court considers relevant
Child custody in South Carolina
A custody determination basically comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made. Absent a custody agreement, the judge will decide the issue “as from the circumstances of the parties and the nature of the case and the best spiritual as well as other interests of the children may be fit, equitable and just.”
Child support in South Carolina
Child support is determined by reference to the South Carolina Child Support Guidelines.
Miscellaneous matters
A court hearing may not enter a final hearing until at least three months after the Complaint is filed. A party’s maiden or former name may be restored.
LegalZoom’s uncontested online divorce service is an inexpensive way to file for divorce if you and your spouse agree on most major issues. Otherwise, you can talk to an attorney for advice or help filing for divorce through the LegalZoom personal legal plan.
