What to Expect When Going Through a Divorce
South Carolina Family Court; The Highlights of a Case
If you are considering filing for separate support and maintenance or a divorce there are multiple issues that need to be addressed and evaluated. You need a lawyer that knows you and that can represent your best interest. Issues that you will want to discuss with your lawyer are grounds for divorce, custody of the children, property division, child support, alimony, restraining orders (orders of protection), the expected timeline of your case, temporary hearings(click here for clients only), evidence, investigations, and what must be done to protect the best interest of your child(ren), your financial standing and cost, and your piece of mind.
After you have retained a lawyer there will be several things that need to be done fairly expeditiously. At Kehl Culbertson Andrighetti & Kornfeld, LLC your attorney will provide you with literature that explains what is needed in your case and when it is needed. If you are the Plaintiff then your attorney will counsel you concerning service of process, hearings, mediation, and trial. If you have been served with initial papers you should consult with an attorney as soon as possible.
Separation and divorces are as unique as the individuals represented. A divorce is never simple but in rare cases it can be non-contested and the timeline line from bringing the case and closing it can be fairly quick. On the other hand, it can be contested, extremely cumbersome, and last for more than a year.
You can expect to be able to answer any and all questions concerning your marriage that may be relevant to a judge. These meetings and information gathering times will allow your attorney to gather the information needed to best represent you.
If a temporary hearing is needed you and your attorney will need to review and prepare several documents required by the Court. A temporary hearing is commonly scheduled for 15 minutes and a Judge will make a ruling on temporary issues such as custody, possession of the marital home, child support, alimony, family support, restraining orders, and attorney fees and cost.
If after the temporary hearing you cannot reach a settlement agreement with your spouse then you will attend mediation.
South Carolina Courts require the parties to attend mediation before a request for a final hearing may be submitted if all issues are unresolved. Mediation is defined as “an informal process in which a third-party facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial.” (See ADR Rules: HERE )
If mediation is unsuccessful a final hearing can be requested assuming the parties are ready for trial.
This article was written to give you a quick overview of the main events that occur during the life of a family court case. It is not, in anyway, an exhaustive explanation of all the possibilities that can occur. If you have a more specific question please don’t hesitate to ask us via email or schedule a consultation.
Think of Kehl Culbertson Andrighetti & Kornfeld, LLC if you are thinking of divorce.
Grounds For Divorce in South Carolina
In South Carolina there are five grounds for divorce for which you can file.
Intentionally living separate and apart for a continuous year is, by far, the most common ground for divorce. It’s a no-fault based divorce. If the Court is to grant you a no-fault based divorce you must live separately from your spouse. This means you must live completely separate. You cannot sleep on the couch, in the far bedroom, or out in the shed. You must be completely separate and you must live on separate properties. It must be voluntary by at least one party. You must be separated for a continuous year. If you reconcile by moving back in with each other the year starts again.
Adultery is the act of having a relationship outside the bounds of marriage. It’s sexual intercourse with someone other than your spouse. A divorce on the grounds of adultery may affect the division or assets and debts, or equitable distribution, of the parties. If you suspect your spouse is committing adultery it is probably time to meet with an attorney. You must still be able to prove your spouse is committing adultery in Court which is not always aligned with what you know in your heart.
Habitual drunkenness and drug abuse can be proven if you can show your spouse makes a habit of getting or using narcotics, it caused the breakdown of the marriage, and it existed near the time you filed for divorce.
Physical cruelty is actual physical violence that endangers your life so much so that it is no longer safe to live with your spouse.
Desertion is rather archaic and divorces are rarely filed under the ground of desertion because it is not efficient or economic. Like a no-fault divorce, you must be separated from your husband for a year, your spouse must intend to continue living separate and apart from you. Keep in mind that you still must serve your spouse with a complaint for divorce which may prove difficult if your spouse has deserted the marital home. We recommend that you to meet with an attorney at Kehl Culbertson Andrighetti & Kornfeld, LLC.
You may be thinking that you don’t qualify for any of these but you still need relief such as child support, help with bills, your mortgage, rent, a restraining order, etcetera. If that is the case and you are not living with your spouse then filing for separate support and maintenance might be the relief you are seeking.
The Court will look at what is in the best interest of the child when determining custody. It looks at a number of factors in considering what is in the best interest of the child. Some of those factors include, but are not limited to, who is theprimary caregiver of the child, work schedules, character and fitness, attitude, housing, others involved in the child’s life, written agreements between the parties, evidence of any alienation.
Custody is modifiable if there has been a substantial change in circumstances that affect the child such as relocation of the primary custodian, a decline in the child’s grades, if a parent is alienating a relationship with the other parent, etc. There is no list concerning when custody is modifiable or if the Court will be persuaded by your argument but there are some of the most common grounds.
Parental Rights in South Carolina
In South Carolina each parent has equal rights concerning the minor child(ren) regardless of who has custody of the minor child(ren) unless these rights are prohibited by the court. This means each parent has equal rights to all educational records, medical records, and the right to participate in their child’s school activities. If you are the biological parent or legal parent of a child and no Order exist or the Order does not restrain your rights then you have equal rights as stated in the statute below. It is important to read an Order of the Court very carefully. As always, the best interest of the child is the paramount concern of the Court. The full language of the statue can be found below.
S.C. Code§ 63-5-30 Rights and duties of parents regarding minor children:
The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.
The factors a Court considers when determining support depends on the parties gross income or potential gross income, daycare expenses, extraordinary medical bills, insurance coverage, educational expenses or other expenses that are relevant to protecting the best interest of the child.
In most cases, the Courts follow the South Carolina Child Support Guidelines. The Court might also look at income generating assets.
The Court will considered support of other children or adopted children living in the payee’s home. A payee who also supports a step-child that is in the home is not included in equating child support unless the payee is legally responsible for support that child.
The guidelines have three separate worksheets; sole, split, and shared custody. Each worksheet quantifies the amount of time spend with each child to decide what amount of support is appropriate for the child.
In South Carolina, the Court has discretion to Order the payee to pay the payor directly or pay through the Court. If the Court orders the payee to pay through the Court the payee will be required to pay an additional 5% court cost.
If you are curious about what amount of support may be awarded you may Click Here. This is just an estimate and certain factors that may be unknown could change the amount significantly.
Sources: Marriage and Divorce Law in South Carolina, A Layperson’s Guide 3rd edition; The SCDSS website.
Alimony is a court ordered payment from one spouse to another and is often awarded if the Court believes it is needed to put one spouse in the position they customarily enjoyed during the marriage. The Court can look at several factors when determining if it will Order alimony and how much. The Court looks at the duration of the marriage, the ages of the parties, the health of each spouse, employment history, standard of living, expenses of each spouse, marital and nonmarital assets, custody of the children, marital misconduct, tax consequences, and educational backgrounds of each party.
Complete Custody, Property, and Support Agreements
An overwhelming number of divorce cases settle before going to trial. If you and your spouse have come to an agreement on all or most of the issues, it may be beneficial to draft a proposed agreement that illustrates your intentions and present this to the Court. Many times, if the Court finds that the agreement is fair and equitable to both parties and the children, the Court will approve the agreement and make it part of the Court Order. It is always advisable for both parties to consult their own attorney before deciding whether an agreement is in fact fair. The advantages to coming to an equitable agreement are many, but include peace of mind, time, and money.
Petition for an Order of Protection
If your need protection because you have been abused, it may be in your best interest to file a petition for an Order of Protection. We would be happy to help you. If you want to get general information about Order of Protection click here.