In South Carolina there are five grounds for divorce: separation of the spouses for at least one year (the “no-fault divorce”), adultery, physical cruelty, habitual drunkenness (alcohol or drug abuse) and desertion. The proof needed to allow the court to grant a divorce on one of these five reasons depends on your circumstances. Testimony from a third party will probably be required. State law requires that a family court judge make a specific finding that reconciliation is not possible before the judge can grant a divorce. Divorce on a ground of adultery, physical cruelty, and habitual drunkenness does not require a one year separation.
When you and your spouse have separated but do not have grounds for divorce, you can apply to the court to address issues while you live separate and apart. This is done through an action for separate maintenance and support, which can include a claim for spousal support, child support, child custody and equitable division of marital property. Separation officially begins on the day that the spouses no longer live together, which requires separate residences, not just separate rooms.
Both parents have legal responsibility to provide economically for their children. A noncustodial parent usually will be required to pay a specified amount of child support to the custodial parent. In determining the appropriate amount, the court must use the Child Support Guidelines that provide a calculation of support based on the gross income of the parents. The court can order that child support payments be made through the Clerk of Court along with a collection fee. Many employers offer an automatic payroll deduction for child support payments.
Child Custody / Visitation:
When parents cannot agree on who should have custody of their minor children, then the court must decide. Custody litigation is an expensive procedure and often very emotional. Both parents should look honestly at their new living conditions, available time and other resources and consider carefully which parent can provide a better home life for their children. Because neither parent automatically has a legal right to custody, the court will consider the best interests of the children. The court may order joint or shared custody. Children who have reached an appropriate level of maturity may express their preference to the judge. However, a child’s preference is not controlling. Minor children may be appointed Guardians ad Litem to represent them in court. Noncustodial parents can be awarded periods of specified visitation with their children. If circumstances surrounding custody and the child’s best interests change substantially, the family court can then order a change of custody or visitation.
Spousal support is also called alimony. Either spouse may be entitled to monetary support from the other spouse. Alimony can be paid in a lump sum, in installments for a period of time, or permanently. Where appropriate, the Family Court can award short term alimony to help a spouse upgrade or acquire job skills to allow the person to become self supported. Alimony can be modified in some circumstances. Additionally, alimony can be terminated in some cases, such as the remarriage of the receiving party.
Division of Assets/Debts:
If the spouses cannot agree on how to divide their marital property, the family court will make the decision for them. Marital property usually includes all assets or debts acquired during the marriage, with certain exceptions such as inherited property or gifts from outside the marriage. Your lawyer will advise you on what is considered marital property. It is helpful for each spouse to provide the lawyer with a list of all assets, when and how these assets were acquired, the approximate value of each asset and any debts either spouse may have. Copies of recent tax returns and insurance policies and estimated monthly living expenses are helpful information to take when first meeting with the lawyer. Which spouse has legal title to an item of marital property does not necessarily determine to which spouse the family court will award that property. The court will consider the financial contributions and conditions of the parties, their ages, health, education, fault and the length of the marriage.
Termination of Parental Rights:
If a family court judge terminates someone’s parental rights, it removes all rights and obligations between the parent and the child. The parent will have no right to see the child, but the parent also will have no responsibility to financially support the child or pay child support.
Losing custody of a child is not the same as having parental rights terminated. In a loss of custody case, the parent may still have visitation and pay child support. Additionally, if a parent loses custody, they may regain custody by showing a substantial change in circumstances.
If one or both parents have their parental rights terminated, then a child may be adopted. In some cases, a grandparent, other family member, or non-relative may choose adopt the child. If one parent's rights are terminated and the other parent is married, then the step-parent can apply to adopt the child. Depending on who the adoptive parents are, relative or non-relative, then the requirements are different. There are instances when an adoption may not be granted, if the adoption is not in the best interest of the child or children.
M. Brooks Moss, PA
Attorney at Law
Below are links to websites that you may find beneficial while navigating the Family Court System.
Continue scrolling for a summary of some of the issues that occur in Family Court.