South Carolina Divorce Recovery

Child Custody

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 child custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor.

So goes South Carolina divorce laws and SC child custody. Parents are afforded the opportunity to agree on a Parenting Plan or Child Custody Schedule, and if they are unable to reach agreement, the family court will consider parenting skills and impose its own plan. Each parent, whether the custodial or non custodial 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 will forcibly take a child from the guardianship of the parent legally entitled to custody of the child. Child's preference for custody to be considered. In determining the best interests of the child, the court must consider the child's reasonable preference for custody. The court will place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference.

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

More on child custody

Download South Carolina Divorce Forms

[Code of Laws for South Carolina - Chapter 3; Sections 20-3-160, 20-7-100, 20-7-1520]

Marriage Annulment - Marital Annulment

An annulment in South Carolina is the court’s declaration that the marriage never existed or is void. This is different than a divorce (dissolution) which ends a marriage. The annulment process in SC can be challenging because annulments are more difficult to get. The difficulty for annulments is that one must prove a ground for annulment sufficient to convince a judge. Grounds for a SC annulment include:

• Fraud - SC annulment laws list fraud as a legal annulment ground in South Carolina,
• Duress - Causing duress or threatening someone into marriage is a valid annulment ground according to SC annulment laws,
• Mental Illness - SC annulment laws state that a mentally incapacitated person cannot enter into a marital contract. If your spouse has a mental illness, you can claim annulment under SC annulment laws,
• Underage Marriage - Persons marrying underage qualifies as a ground for annulment,
• Impotency - Unable to consummate the marriage is a ground for annulment,
• STD's - Passing to your partner a venereal disease is a ground for annulment.  

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

More on marriage annulments

[Code of Laws for South Carolina - Sections 20-1-10, 90, 530, 15, 80]

Child Support

South Carolina child support is based on the Income Shares Model, which calculates child support as the share of each parent's income which would have been spent on the children if the parents and children were living in the same household.

South Carolina divorce laws permit the parents the opportunity to create and agree to a Parenting Plan and Child Visitation Schedule. SC child support laws mandate that:

1. you and your divorcing spouse create one that meets with the court's approval.
2. the judge imposes a plan on you - one you may not like or feel complete.

Support is based on a fixed formula. State guidelines state:

The court may deviate from the guidelines based on an agreement between the parties if both parties are represented by counsel or if, upon a thorough examination of any party not represented by counsel, the court determines the party fully understands the agreement as to child support. The court still has the discretion and the independent duty to determine if the amount is reasonable and in the best interest of the child(ren).

The total child support obligation is divided between the parents in proportion to their income. Each parents proportional share of combined adjusted gross income will be calculated. South Carolina child support terminates when the child turns 18, or completes high school, whichever occurs later.

If split custody is ordered, the court will determine a theoretical support payment for the child in the custody of the other. The difference between the two will be paid by the parent with the higher income. For more information, to use a child support calculator or child support obligation worksheet, see this link.

Editors Note: In April, 2010, the South Carolina Supreme Court overturned a 1979 decision, under which parents could be ordered to contribute to their children's college expenses. The case, Webb v Sowell, witnessed the Father appealing a ruling after he was ordered to contribute to college expenses for his son. The Court reversed the trial court's decision, finding that it violated the Equal Protection Clause of the federal and state constitutions.

Worried about custody and visitation battles in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

Read more on Child Support

[Code of Laws for South Carolina - Chapter 3; Sections 20-3-160, 20-7-40, 20-7-100]

Legal Separation - Marital Separation

In South Carolina there is no such thing as a legal separation. In its stead are orders of Separate Maintenance and Support. This is an order which sets forth a formal arrangement made in a judgment issued by a judge. The judgment determines how the husband and wife will legally live apart and details the responsibilities of each. Should a husband and wife choose to live apart without such a formal arrangement, but they are not legally living apart. One of the marriage partners may choose to seek an order of separate maintenance and support for several reasons. The judge hearing the case can determine the amount of support to be paid by one partner to the other, if any; which of the marital partners can live in the marital home, can determine questions of child custody, visitation rights and can divide property. 

 

Read more on Legal Separation

[Code of Laws for South Carolina - Chapter 15; Section 15-5-16.1]

Divorce Settlement - Dividing marital assets

You are afforded the opportunity to negotiate a divorce settlement with your soon-to-be ex prior to or during the divorce process. Depending upon your situation, that process will include agreeing to the division of assets, debt, support (child and/or spousal) and child custody if applicable. Most couples that have children and need to reduce costs acquire a parenting plan template to accomplish a co-parenting agreement.

Should you be unsuccessful in reaching an agreement, the court will impose its own plan:

In a proceeding for divorce or separate support and maintenance, or in a proceeding for disposition of property following a prior decree of dissolution of a marriage by a court which lacked personal jurisdiction over an absent spouse or which lacked jurisdiction to dispose of the property, and in other marital litigation between the parties, the court will make a final equitable apportionment between the parties of the parties' marital property upon request by either party in the pleadings. In making a divorce settlement, the court must give weight in such proportion as it finds appropriate to all of the following factors:

• the duration of the marriage together with the ages of the parties,
• marital misconduct or fault of either or both parties,
• the value of the marital property,
• the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets,
• the health, both physical and emotional, of each spouse,
• the need of each spouse or either spouse for additional training or education in order to achieve that spouses's income potential,
• the non marital property of each spouse,
• the existence or nonexistence of vested retirement benefits for each or either spouse,
• whether separate maintenance or alimony has been awarded,
• the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children
• the tax consequences to each or either party as a result of any particular form of equitable apportionment
• the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party
• liens and any other encumbrances upon the marital property,
• child custody arrangements and obligations at the time of the entry of the order; and
• such other relevant factors as the trial court shall expressly enumerate in its order. 

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

Read more on dividing marital assets

[Code of Laws for South Carolina - Chapter 3; Sections 20-7-472, 20-7-473]

Alimony - Spousal Support - Maintenance

Alimony (maintenance) may be requested by either party. It can be temporary or permanent, lump sum or by payments. No alimony may be awarded a spouse who commits adultery before the earliest of these two events: the formal signing of a written property or marital settlement agreement or entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

Concerned about custody and visitation battles in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

In determining alimony (or spousal support) the courts may consider:

• The length of the marriage,
• The conduct of the parties during the marriage,
• The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates,
• The contribution and services of either party as a homemaker,
• The health and age of the parties,
• The amount and sources of income of each of the parties,
• The occupation and employability of each of the parties,
• The opportunity of each party for future acquisition of capital assets and income,
• The contribution by one party to the education, training, licensure, business, or increased earning power of the other,
• The need of the custodial parent to occupy or own the marital residence and to use or own its household effects taking into account the best interests of the children of the marriage,
• Either party's wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration, and
• Any factor which the court shall expressly find to be just and proper. 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

[Code of Laws for South Carolina - Chapter 3; Sections 20-3-120, 20-3-130, 20-3-140]

Visitation - kids going between two homes

Parties to a separation or divorce have the option of submitting a Parenting Plan, Child Visitation Agreement and/or a Child Custody Schedule to the court during the legal process. A parenting plan will detail the particulars on when each parent will have the children, and what responsibilities they will have. If you cannot agree on a visitation schedule, the court will order one. Features typically found in a visitation agreement where the non-custodial spouse is concerned are: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer.

You may wish to consider these issues and whether they should be a part of the agreement or not. Be as specific as you can including the right language in your agreement. How is the decreed custody defined? What are the rights and responsibilities? Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What about future partners? Should those partners stay overnight in front of the children? 

Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. If you anticipate any problems with custody or visitation, we suggest you own Child Custody Strategies.

[Code of Laws for South Carolina - Chapter 15; Section 15-5-16]

Grounds for divorce

South Carolina divorce laws have established the following grounds for divorce based on fault and no fault claims.

1. No fault petitions require that you must have lived apart for at least one year without cohabitation.

2. Grounds for divorce for a divorce that claims fault are:

• Adultery,
• Willful desertion for a period of one year,
• Physical cruelty,
• Habitual drunkenness or drug abuse.

 

[Code of Laws for South Carolina - Chapter 3; Sections 20-3-10]

Residency - You must be a legal resident to file

In order to begin an action for divorce from the bonds of matrimony the plaintiff must have resided in this State at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have resided in this State for this period; provided, that when both parties are residents of the State when the action is commenced, the plaintiff must have resided in this State only three months prior to commencement of the action.

 

 

[Code of Laws for South Carolina - Chapter 3; Sections 20-3-30, 20-3-60, 20-3-80]

Mediation - Using a Mediator to resolve disputes

South Carolina is going to make a reasonable attempt at getting the couple to reconciliation. Be prepared for it. The referee will make an earnest effort to bring about a reconciliation between the parties if they appear before him. South Carolina divorce laws require that the referee notify the court if reconciliation is unattainable. No divorce will proceed without this notification. South Carolina wants you to be certain before you move forward with a divorce.  

 

 

[Code of Laws for South Carolina - Chapter 3; Sections 20-3-80, 20-3-90]

Grandparents visitation

South Carolina divorce statutes and Federal law allow courts to order periods of visitation for the grandparents of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats regardless of the existence of a court order or agreement, and upon a written finding that grandparents visitation rights would be in the best interests of the child and would not interfere with the parent/child relationship. In determining whether to order visitation for the grandparents, the court will consider the nature of the relationship between the child and his grandparents prior to the filing of the petition or complaint.

 

 

 

 

[Code of Laws for South Carolina - Chapter 63; Sections 63-3-530A-33]

Waiting Period

There is a three (3) month waiting period from the filing of the petition before the court will grant a judgment of dissolution of marriage. There is a waiting period of one year if one is using living separately for one year as grounds for divorce.

There are no restrictions against remarriage following a divorce decree.