Experts* Corner: An Overview of Divorce in South Carolina

Going through a divorce is an awful experience, and dealing with all of the legalities can make it much worse. My goal is not to give you specific advice about your situation, but provide general information about divorce in South Carolina so you can be more informed if you, or a loved one, are faced with the prospect of divorce. It’s best to think of this article as a starting point, not as the final word.

 

 

Grounds for Divorce

First, there is always a reason that two people decide to divorce, but not all of those reasons are recognized by our legal system. In South Carolina, there are 5 reasons you can get divorced (called “grounds” for divorce):

1. Separation for a period of more than 1 year

2. Adultery

3. Habitual drunkenness (this includes habitual drug use)

4. Physical cruelty

5. Desertion

You might think of a few other grounds that are available in other states. The ones I hear most often are “irreconcilable differences” and “emotional abuse” – neither of these are grounds for divorce in South Carolina.

For more information, including the proof necessary to get a divorce on each ground, take a look at the more-detailed “Grounds for Divorce.”

Equitable Apportionment

The words “equitable apportionment” sound overwhelming. What you should know is that this is the process for dividing all of the marital assets and debts.

The first question is: which items are marital? Very generally speaking, a marital asset or debt is one that was acquired during the marriage. There are some exceptions to this rule, and you should always get advice from an attorney who is knowledgeable about your specific situation, but for more information, take a look at “Crash Course: Equitable Distribution in SC.

Making a list of all assets and debts can be mind-numbing, but it’s necessary. Assets are anything that has a value, including: real estate, personal property (cars, jewelry, art, furniture, electronics, etc.), checking/savings accounts, certificates of deposit, pensions or retirement plans (IRAs, Roth IRAs, Keoghs, TDSP, etc.), brokerage accounts, and life insurance policies. A business owned by either spouse may also be a marital asset. Debts are anything that has to be paid, including: mortgages or other loans, credit card balances, liens, or judgments.

Once all of the marital property has been identified and valued, then it has to be divided between the spouses. This is usually done on a percentage basis (for example, one spouse receives 55% of the marital assets, and the other receives 45%). The South Carolina legislature has outlined factors for the Family Court to consider when dividing the marital property in S.C. Code § 20-3-620.

Alimony/Spousal Support

One of the most-often searched topics is alimony. People want to know who can get it and how much it will be.

Like with equitable apportionment, our legislature has outlined factors for determining when alimony is appropriate in S.C. Code § 20-3-120 (pay attention to subsection C). I have also written quite a bit on this topic before; take a look at my Alimony FAQ.

After the Court has decided that an award of alimony is appropriate, it has to decide how much alimony should be paid. There really aren’t very many general guidelines on this – the amount is based on the financial circumstances of the couple at the time of the divorce.

An appropriate amount can only be determined after considering the parties’ incomes and earning capacities (as well as their respective ages and the status of each person’s health), as well as the standard of living they had during their marriage. Because of this, an amount that is appropriate in one case may be completely wrong in another.

Child Custody

Child custody is easily the “ugliest” area of divorce – when two people can’t agree on where their children should live, it has the potential to destroy the family.

When the Family Court has to determine custody and visitation for a child, the overarching standard is the best interests of the child. The problem is that parents involved in a custody action probably disagree about what is best for their child.

Over time, our courts have identified particular things that usually contribute to a child’s best interest. In June 2012, our legislature codified some of these factors into a new statute. Because the online Code has not yet been updated, I’ve listed the factors below:

  •  the temperament and developmental needs of the child;
  •  the ability of the parents to meet the needs of the child;
  •  the preferences of each child;
  •  the wishes of the parents as to custody;
  •  the past and current interaction and relationship of the child with any person (including each parent, the child’s siblings, and grandparents) who may significantly affect the best interest of the child;
  •  the actions of each parent to encourage the parent child relationship between the child and the other parent (including compliance with court orders);
  •  the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
  •  any effort by one parent to disparage the other parent in front of the child;
  •  the ability of each parent to be actively involved in the life of the child;
  •  the child’s adjustment to his or her home, school, and community environments;
  •  the stability of the child’s existing and proposed residences;
  •  the mental and physical health of all individuals involved (except that a disability of a proposed custodial parent or other party must not be determinative of custody);
  •  the child’s 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 factors as the court considers necessary.

It’s important to remember that this list is not exhaustive – as the last bullet says, the Court can consider any information it determines is relevant on the issue of custody. Because custody is an extremely complex issue, it cannot be simplified to a one-size-fits-all list.

Child Support

Usually, the parent who spends more time with the child will receive child support from the other parent. For determining the amount of child support, there’s a child support calculator that is used. (You can try it out here.) To reach a number, you have to input:

  •  how many children there are
  • which parent has custody
  •  each parent’s gross income
  •  any alimony paid between the parents
  •  whether either parent has another alimony or child support obligation (from a different relationship)
  •  the number of other children in the home of each parent
  •  any additional expenses for the benefit of the children: health insurance premium; cost of work-related childcare; and extraordinary medical expenses

Child support seems like it would be simple to determine, and sometimes it is. But it can be complicated when one parent has a job that pays partially in cash (that is poorly documented) or owns his or her own business. In those situations, it can be difficult to figure out the parent’s gross income.

Likewise, sometimes parents don’t agree on the cost of daycare – for example, one parent might think that there are cheaper options available and not want to be responsible for unnecessary costs.

These are the issues that are usually addressed during a divorce, but this is by no means a comprehensive outline of divorce law in South Carolina. (That would take writing a book!) For more complete and specific information, I always advise that you consult a South Carolina lawyer about your situation.

Megan Hunt is a divorce lawyer in Conway, and she blogs about divorce-related topics on her website, www.MeganHuntLaw.com. She and her husband live in Murrells Inlet with their dog, Maxx. While she is prohibited from calling herself an “expert” in family law, she is always willing to provide information.

*In South Carolina lawyers are prohibited from referring to themselves as experts.

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