Family Law | Frequently Asked Questions

What are the grounds for divorce in South Carolina?

  • South Carolina has four fault grounds of divorce: adultery, physical cruelty, desertion, and habitual drunkenness/drug abuse. There is a fifth no-fault ground: living separate and apart for one year without cohabitation. In order to obtain a divorce, the party who files must prove at least one of these grounds with legally sufficient evidence.

Do my spouse and I have to agree to get a divorce?

  • No. Your spouse cannot stop you from obtaining a divorce if you can prove any of the above grounds for divorce and your spouse does not have a legitimate defense to your claim.

Can my spouse and I legally separate?

  • South Carolina does not recognize legal separation. Either you are married or not married. There is, however, a similar action called “An Action for Separate Maintenance & Support.”

What is separation?

  • Separation is when the two parties live in separate locations. Living in two separate bedrooms under the same roof does not qualify as separation in South Carolina.

Do I have to live in South Carolina to be able to file for divorce here?

  • To file for divorce in South Carolina, one party has to have resided in this state for at least one year if the other spouse lives out-of-state. If both parties have lived in South Carolina for at least three months, either party can file for divorce in this State. Issues such as the division of property, alimony, visitation, and child support requiring obtaining personal jurisdiction over the nonresident spouse. Jurisdiction questions are complex, and you should hire an experienced attorney to avoid having your case dismissed due to misunderstanding the law.

In what county to I file for divorce?

  • Actions for divorce are tried in the county where the Defendant resides at the commencement of the action or the county where the parties last resided together has husband and wife. If the Defendant is not a South Carolina resident, then the action is tried in the county where the Plaintiff resides.

How will our property be divided? Will my spouse get 50% of all of our assets and debts?

  • The South Carolina Family Court has jurisdiction to equitably divide the parties’ marital property. There is no preset rule regarding the division of assets. Instead, the Courts consider variety of factors, including: the duration of the marriage; separate maintenance and/or alimony awarded; child custody arrangements; physical and emotional health of each spouse; financial/economic circumstances of each spouse; vested retirement benefits of each spouse; the need for additional training or education to achieve income potential; liens or encumbrances on property; nonmarital property of each spouse; tax aspects of the divorce; support being paid by either spouse regarding a prior marriage or child; desirability of retaining the marital home; each spouse’s contribution to the marriage; fault or misconduct of either party; and any other factors that the Court deems necessary to do equity and justice.

What is the difference between marital and nonmarital property?

  • Very generally, nonmarital property is typically considered any asset owned prior to the marriage, inherited by a party during the marriage, or given by a third party as a gift during the marriage. Marital property includes all real and personal property acquired by the parties during the marriage, gifts between spouses given during the marriage, and vested and non-vested benefits or funds accrued during the marriage such as retirement accounts, pensions, and real property. However, there are many exceptions and nuances to this list, and there are situations where non-marital property can been turned into marital property thru transmutation.

What is separate maintenance and support? What is alimony?

  • Separate maintenance and support is pre-divorce support payments made by one spouse to the other.
  • Alimony is post-divorce support payments made by one former spouse to the other. There are five types of alimony: periodic, lump sum, rehabilitative, reimbursement, and other.
  • While either party may be eligible for alimony or separate maintenance and support, if one spouse can prove that the other spouse has committed adultery, the recipient spouse can be barred from receiving any support.
  • In South Carolina, the Courts consider these factors when awarding alimony: the duration of the marriage together with the ages of the parties at the time of marriage and at the time of divorce; the physical and emotional condition of each spouse; the educational background of each spouse, including the need for additional training to reach income potential; employment history and earning potential of each spouse; custody of children; standard of living established during the marriage; tax consequences; the existence of a support obligation from a prior marriage; current and reasonably anticipated expenses of each spouse; marital misconduct or fault of either party; and any other factors that the court wishes to consider.

Is it possible for a father to get custody?

  • Yes; the paramount consideration in all child custody controversies is the best interest of the child. South Carolina abolished the Tender Years Doctrine that gave mothers preference when awarding custody of young children.

What does the Court consider when awarding custody?

  • The paramount consideration in all child custody controversies is the best interest of the child. Other factors include: who has been the child’s primary caregiver; the child’s reasonable preference, if age appropriate; the character, fitness, attitude and inclination on the part of each parent as he or she impacts the children; immoral conduct by a party that would be detrimental to the welfare of the child; the psychological, physical, environmental, educational, medical, family, emotional, and recreational aspects of the child’s life; religious faith; domestic violence issues; and any written agreement between the parties.

How does the Court determine child support?

  • In South Carolina, child support is governed by the Child Support Guidelines promulgated by the South Carolina Department of Social Services. In rare circumstances, a Court can deviate from these guidelines. Please refer to the Child Support Calculator under our Helpful Links section to calculate your child support amount.
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