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Divorce Frequently Asked Questions

What You Need to Know About Your Divorce in South Carolinashutterstock_576548779

 

How is Alimony Calculated?

Alimony is financial support paid to a former spouse following a separation or divorce. Also known as “maintenance” or “spousal support,” alimony exists to ensure that both parties are provided for after a separation or divorce. There are different kinds of alimony and which type the Court selects depends on the unique circumstances of each case.  The determination of alimony rests within the discretion of the family court. The duration of the marriage is one of many key factors courts use to determine the length and amount of support. Courts also consider the income and assets of each spouse, along with their age, work experience, and education. Click here to read more about the different kinds of alimony.

How is Child Support Calculated?

The Court’s ultimate goal is to find what is in the best interest of the child.  Child support may be granted as part of a divorce, legal separation, or as a separate child custody action. Usually, the parent who is awarded custody of the child will also be awarded child support. As a result, the non-custodial parent will likely be ordered to pay. South Carolina Code Ann. § 63-17-470 provides the South Carolina Child Support Guidelines which is used to determine the monthly support obligation.

What is the Difference Between a Divorce and Annulment?

Divorce and Annulment are two separate legal procedures which may be used to terminate a marriage. Divorce is a procedure that declares the end to a previously valid marriage. Annulment, on the other hand, is the legal nullification of a marriage that technically should never have existed. Annulment is a statement that the marriage was never valid, while divorce is used after a legitimate marriage has ended.

How Can I Obtain a Divorce in South Carolina?

Divorce proceedings take place in Family Court and can be a challenging and complicated process. The process begins with one party filing a “Complaint for Divorce” and serving it on the other party. Once the opposing party receives the Summons and Complaint, he or she must then file an Answer. Read more on South Carolina divorce procedure.   It is important that you seek the advice a South Carolina Divorce Attorney who understands the system and will advocate on your behalf to protect your interests.

What is the Difference Between an At-Fault Divorce, and No-Fault Divorce?

There are five grounds for divorce in South Carolina, four of which are categorized as “at-fault” grounds. Under these grounds, both spouses do not need to agree to get a divorce, since the potential defendant would not have an acceptable defense to the accusations. At-fault grounds may be raised if one party has engaged in:

  • Adultery;
  • Desertion for greater than one year;
  • Physical cruelty; or
  • Habitual drunkenness.

A fifth ground for divorce is an application for divorce after the husband and wife have lived separate and apart, without cohabitation, for a period of one year. In this circumstance, couples may obtain a divorce without either party claiming legal fault for the divorce.

What is a Legal Separation?

While the application for divorce without cohabitation requires a year of separation between husband and wife, there is no legal status of separation that couples must obtain other than failure to cohabitate. However, South Carolina does maintain an action for “Separate Support and Maintenance,” which is similar to a legal separation in many states.

What Does Divorce Mean for My Finances?

Divorce can have a substantial impact on your personal finances. During the process, property and assets can be divided after considering any number of factors, including income potential income levels of each party, non-marital property, and marital misconduct. The Court will attempt to divide assets as equitably as possible to resolve conflict and provide for each party.

How Does Divorce Affect My Property?

The Court aims to provide a reasonable and fair solution which considers all factors of a marriage and divorce, and will divide assets accordingly.  First, the court will consider several factors to determine whether the business interest being considered is marital or non-marital. Marital property is defined as all real and personal property acquired by the couple during the marriage. If a business interest was acquired during the marriage and with joint funds, it is likely considered marital property. The Family Court has the authority to apportion marital property.  As a result, the value will be shared by the parties on some pro rata division.

The court does not have jurisdiction to apportion non-marital property. While there are exceptions to the descriptions below, generally, non-marital property includes:

  1. Property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse;
  2. Property acquired by either party before the marriage;
  3. Property acquired after the happening of the earliest of:
    • Entry of a Temporary Order in a Divorce or Separate Maintenance Action;
    • Formal signing of a written property or marital settlement agreement;
    • Entry of permanent Decree of Separate Maintenance or of a Final Order approving a property or marital settlement agreement between the parties;
  4. Property acquired by either party in exchange for property described in items 1 and 2 above;
  5. Property excluded by written contract of the parties (prenuptial agreement);
  6. Any increase in value in non-marital party, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.

Click here to read more about the division of the marital estate.

Why Aren’t All Assets Equal in Equitable Division?

Assets are considered individually during divorce proceedings because of their individual nature. The net worth of an individual is generally divided between cash, stock holdings, loans, property, income, and more. While an individual may have $25,000 in cash and $50,000 in stock holdings, the actual value of these assets may vary based on applicable taxes, asset liquidity, and debt or interest owed. Because of these variances, it is essential that you consider hiring a forensic accountant or financial professional to take a detailed look into your personal assets to establish the actual value of assets which may be divided.

Will I Need to Hire a Private Investigator?

Depending on the facts of your case, you may need to hire a private investigator. Private investigators can be helpful when determining the types of issues in child custody and visitation cases, where there are financial issues, or most commonly where there are allegations of spousal misconduct.

What is a Guardian ad Litem?

In contested cases involving custody or visitation, the Court frequently appoints a Guardian ad Litem to investigate the facts and allegations in that case and to protect the interests of the minor children involved.  Usually, the court will appoint a Guardian ad Litem to protect the child’s interests. The Guardian ad Litem may be an attorney or layperson, as long as they meet the specified requirements. The responsibilities of the Guardian ad Litem include:

  • Representing the best interest of the child;
  • Conducting an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and family by
    • Obtaining and reviewing relevant educational and medical documents;
    • Meeting with and observing the child;
    • Interviewing the parents, caregivers, school officials, law enforcement, and others with relevant knowledge;
    • Obtaining a criminal history of each party if relevant; and
    • Considering the child’s preference, if appropriate.
  • Advocating for the child’s best interest by making specific and clear suggestions;
  • Attending all court hearings related to custody and visitation issues;
  • Maintaining a complete work file;
  • Presenting to the court comprehensive written reports regarding the child’s best interest.

How Does Retirement Affect Alimony?

Retirement by the party responsible for paying alimony can affect alimony payments and is sufficient grounds to warrant a request by that party for a modification of an alimony award/order.

How does Adultery affect Alimony?

All grounds for divorce can have an impact on the financial outcome of the divorce proceeding. Courts will consider the marital misconduct or fault of either or both parties, whether or not it was used as a basis for a divorce or separation if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage.  Generally, a spouse who commits adultery before a final settlement agreement which has been incorporated into a Court order or before a final Order in a contested case is barred from receiving alimony.

Can I Change My Name During Divorce Proceedings?

South Carolina Code Section 20-3-180 specifically provides that the “court, upon the granting of final judgment of divorce or an order of separate maintenance, may allow a party to resume a former surname or the surname of a former spouse.”  Once a party receives the Divorce Decree that authorizes the name change, you will still need to contact the Social Security Office and Department of Motor Vehicles in order to put those entities on notice of your name change.

Can the Family Court Require a Parent to Contribute Towards a Child’s Private School Tuition or College as Part of a Child Support Order?

The Family Court has the authority to require parents to contribute towards their child’s private school tuition as part of a child support order; however this is rarely if ever ordered. The Court may also require a parent to contribute toward college expenses if:

  • The characteristics of the child indicate that he or she will benefit from college;
  • The child demonstrates the ability to do well, or at least make satisfactory grades;
  • The child cannot otherwise go to school;
  • The parent has the financial ability to help pay for such an education;
  • The availability of grants and loans; and
  • The ability of the child to earn income during the school year or on vacation

Click here to learn more about college /child support.

Call now for a consultation to discuss Divorce in South Carolina.

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