Divorce Modification in South Carolina: Changes in Circumstances
What is Divorce Modification?
Divorce is a complicated area of family law with many contentious issues. A divorce order imposes terms and conditions on both parties that can include child custody, alimony payments, and visitation rights. These terms reflect the most court’s determination of an equitable settlement between the divorcing parties. While the court may find one set of terms equitable at the time of divorce, it is possible that the circumstances of their life have changed significantly, altering the ability of one party to contribute financially or maintain custody. In these cases and others, it is appropriate to consider filing for a modification of terms with the court to change the provisions of divorce. From the beginning, it is extremely important that you take every possible action to make sure that the terms are in your favor during the dissolution of your marriage. You will be legally required to abide by the terms in the final divorce decree.
When is a Divorce Modification Appropriate?
Divorce modification is not an order to seek lightly. A court will not approve a divorce modification without a substantial change of circumstances for at least one of the two parties. Seeking modification without a substantive claim, or for a minor issue, may be seen as a nuisance to the court and may hurt your long term chances of modifying a divorce order.
Ways to Modify a Divorce Decree
If only one spouse is seeking the modification, or the former spouses disagree on the terms of the modification, the spouse seeking the change must file a complaint for modification in the court where the divorce was decided. The non-moving spouse has time to respond to the complaint just as parties are allowed and required to do in an underlying divorce action.
The party filing for the modification of an order must present evidence that a substantial change in circumstances has occurred. Without evidence, the court will not consider a modification. Because of this procedure, it is important that any party filing for modification obtain sufficient evidence to prove their case and that the modification is justified or in the best interest of the children, if relevant.
Violations of Terms of Original Decree
Distinguished from modification actions, are instances where a party if violating an existing order. If the original divorce decree is not being followed, a party may consider filing a contempt action against the other party. If your spouse is not abiding by the terms of the original divorce decree, you may have grounds to file a contempt action. If your spouse is held in contempt for violation of the original court order, he or she may face criminal charges or other legal consequences.
Common Reasons for Divorce Modification in South Carolina
Relocation
Parents are sometimes required to provide written notice of their relocation once they have decided to move. Only parents who are primary custodians may move with their children, while parents who are not primary custodians may try to oppose the move. When relocation is at hand, courts are almost always involved to potentially adjudicate new terms for the parents.
South Carolina law makes it difficult for a court to block a move that keeps the family within state borders, requiring a compelling reason to block the move or an agreement by both parents to avoid the relocation. When the primary custodian wants to move out of state, the court has to weigh a greater number of factors before making a more difficult decision. A custodian seeking out-of-state relocation often has to prove that the move is justified for a variety of reasons, including quality of life, the motive for wanting to move, and an alternative visitation policy for the noncustodial parent. Often, the noncustodial parent will oppose any out-of-state move for the sake of continued visitation; the two parties will have an opportunity to make their case in court, which should always be approached with an experienced attorney.
Modification and Termination of Child Support
Either party can seek a modification of an existing child support obligation if the party can show that there has been a substantial change of circumstances since the parties were last before the Court. The party seeking the modification has the burden to show that by a preponderance of the evidence, the unforeseen circumstances have occurred.
Modification and Termination of Alimony
Most types of alimony are subject to modification by showing a substantial change of circumstances. The circumstances could have been anticipated or unknown by the parties at the time the alimony was awarded. Generally, the court may consider termination of alimony upon a showing of:
- the remarriage by the receiving spouse,
- death of either the paying or receiving spouse, or
- continued cohabitation by the receiving spouse with another person in a romantic relationship for a period of 90 or more consecutive days.
The court may determine that continued cohabitation exists in periods less than 90 days if the receiving spouse and his or her lover periodically separate in order to circumvent the rule. Click here to read more about the different types of alimony and the factors courts use to consider which type and the amount.
