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South Carolina Articles
South Carolina Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in South Carolina, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
In order to institute an action for divorce from the bonds of matrimony the plaintiff must have resided in this State at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have so resided in this State for this period; provided, that when both parties are residents of the State when the action is commenced, the plaintiff must have resided in this State only three months prior to commencement of the action.
Actions for divorce from the bonds of matrimony or for separate support and maintenance must be tried in the county (a) in which the defendant resides at the time of the commencement of the action, (b) in which the plaintiff resides if the defendant is a nonresident or after due diligence cannot be found, or (c) in which the 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. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-30, 20-3-60, 20-3-80)
Grounds for Filing:The Complaint for Divorce must declare the appropriate South Carolina grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds:
(1) on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year.
(1) adultery; (2) desertion for a period of one year; (3) physical cruelty; (4) habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-10)
Filing Spouse Title:Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:State of South Carolina, The Family Court of the __________ Judicial Circuit. This is the South Carolina court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to South Carolina law. There are anywhere from ten to twenty other documents that may be required throughout the filing process.
Court Clerk's Title:County Clerk's Office of the Family Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since South Carolina is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
In determining the appropriate property award the court will decide what is marital property and divided that property is an equitable fashion by considering the following factors: 1. the length of the marriage. 2. the age of the spouses. 3. marital fault or misconduct. 4. the current value of the property. 5. the contribution each spouse made to the acquisition of the property. 6. the income of each spouse. 7. the earning potential of each spouse. 8. the health of each spouse. 9. the need of each spouse. 10. the separate property of each spouse. 10. the retirement benefits of each spouse. 11. the tax consequences. 12. the expenses a debts of each spouse. 13. the custody arrangement if children are involved. 14. any other relevant factors. (Code of Laws for South Carolina - Chapter 3; Sections 20-7-472, 20-7-473)
Restoration or Name Change:The court, upon the granting of final judgment of divorce, may allow a party to resume a former surname or the surname of a former spouse. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-180)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors: (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 action between the parties; (2) the physical and emotional condition of each spouse; (3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential; (4) the employment history and earning potential of each spouse; (5) the standard of living established during the marriage; (6) the current and reasonably anticipated earnings of both spouses; (7) the current and reasonably anticipated expenses and needs of both spouses; (8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action; (9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature; (10) marital misconduct or fault of either or both parties; (11) the tax consequences to each party as a result of the particular form of support awarded; (12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and (13) such other factors the court considers relevant. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-120, 20-3-130, 20-3-140)
Counseling or Mediation Requirements:In all cases referred to a master or special referee, such master or special referee shall, except in default cases, summon the party or parties within the jurisdiction of the court before him and shall in all cases make an earnest effort to bring about a reconciliation between the parties if they appear before him. No judgment of divorce shall be granted in such case unless the master or special referee to whom such cause may have been referred shall certify in his report or, if the cause has not been referred, unless the trial judge shall state in the decree that he has attempted to reconcile the parties to such action and that such efforts were unavailing. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-80, 20-3-90)
Child Custody:In determining the best interests of the child, the court must consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference. The court will also consider evidence of domestic violence, the current situation and nature of the divorce, and the religious faith of the parents. The court will not award custody based upon the gender of the parent. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-160, 20-7-100, 20-7-1520)
Child Support:South Carolina child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent's income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
In any proceeding for the award of child support, there is a rebuttable presumption that the amount of the award which would result from the application of the guidelines is the correct amount of child support to be awarded. A different amount may be awarded upon a showing that application of the guidelines in a particular case would be unjust or inappropriate.
The court shall consider the following factors which may be possible reasons for deviation from the guidelines: (1) educational expenses for the child or children or the spouse; (2) equitable distribution of property; (3) consumer debts; (4) families with more than six children; (5) unreimbursed extraordinary medical or dental expenses for the noncustodial or custodial parent; (6) mandatory deduction of retirement pensions and union fees; (7) support obligations for other dependents living with the noncustodial parent or noncourt ordered child support from another relationship; (8) child-related unreimbursed extraordinary medical expenses; (9) monthly fixed payments imposed by a court or operation of law; (10) significant available income of the child or children; (11) substantial disparity of income in which the noncustodial parent's income is significantly less than the custodial parent's income; (12) alimony. (13) agreements reached between parties. (Code of Laws for South Carolina - Chapter 3; Sections 20-3-160, 20-7-40, 20-7-100)
Copyright Notice: The above synopsis of South Carolina divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
South Carolina recognizes no-fault and fault divorces. Under no-fault, both parties must live apart for at least one year. Fault divorce requires proof that the marriage is irretrievably broken due to adultery, desertion (for a period of one year), physical cruelty, or substance abuse.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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