SEPARATION & DIVORCE
CHILD CUSTODY & SUPPORT
There is no doubt it: divorce is stressful. Not even those fortunate couples who manage to call it quits amicably walk away without a few divorce-related stressors in their lives. Knowing how stressful splitting up can be, Ruth & MacNeile, P.A. lends sound advice and guidance through this difficult time.
In South Carolina, a divorce may be obtained upon a showing of either "fault" or "no-fault" grounds
(1) No Fault: South Carolina statutes provide that a divorce can be granted upon a finding that the Husband and Wife have lived separate and apart, without cohabitation, for a period of at least one year.
(2) Fault: Requires a finding that a party has:
(a) committed adultery (adultery);
(b) deserted the other party for a period of one year (desertion);
(c) physically abused the other party (physical cruelty); and/or
(d) been habitually drunk or on drugs (habitual drunkenness)
If fault grounds are established, a party may be entitled to a divorce from the other party within three months from the date of filing for the divorce. If a divorce is pursued on no-fault grounds, the spouses must be separated for a year before filing for the divorce.
Either spouse may seek a Decree of Separate Maintenance without the waiting period, and this action allows for the Family Court to grant the following relief pending the conclusion of the one year of separation (child custody and support, property division, alimony, an award of attorney's fees and court costs and other relief.
The issue of child custody arises when a Husband and Wife separate or divorce. There are two basic types of legal custody, sole custody and joint custody. The judge considers the "best interests" of the child when making a custody determination.
Factors a court may consider in determining the "best interests" of the child include:
- The relative fitness of each parent
- Who is the primary caretaker of the child
- The amount of time a parent can spend with the child
- Education and parenting skills of each parent
- Each parent's conduct during the marriage (immoral or illegal)
- Resources and attributes of each parent
No one factor, alone, will solely determine the custody of a child. Rather, the judge, with the assistance of a court-appointed Guardian ad litem, will consider all the facts and circumstances surrounding the case before making a determination.
The amount of child support to be paid by the non-custodial parent is governed by statute and based upon the South Carolina Child Support Guidelines. The Guidelines are based on the gross income of each parent and take into consideration other expenses for the children (for example, work related care expenses, payment of medical insurance premiums for the child(ren), and the existence of other children from a previous relationship in the home). Except in unusual circumstances, the guidelines do not consider the actual living expenses of each parent (cost of home or apartment, utilities, etc.). Child support can be paid directly to the custodial parent or indirectly to the custodial parent through the Family Court. Failure to timely pay child support can subject a parent to the contempt powers of the court, including fines and even jail time.
Equitable Distribution of Marital Property:
Equitable distribution of Marital Property involves identifying assets (house, cars, personal property, accounts & investments) acquired during the marriage and dividing the assets fairly between the parties. As a general rule, property acquired prior to the marriage or inherited property is not subject to distribution; however, the existence of non-marital property may affect an equitable distribution.
Factors the court may consider in equitable distribution include:
- Length of marriage & Marital Fault
- Marital and non-marital assets
- Child custody
- Income of each spouse
A grant of spousal support/ alimony is the means by which the court may ensure that a spouse maintains the same or similar standard of living that he/she enjoyed during the marriage.
Types of spousal support/alimony include:
- Permanent alimony
- Lump sum alimony
- Rehabilitative alimony
- Reimbursement alimony
Factors involved in an award of spousal support/alimony include:
- Duration of the marriage
- Standard of living during the marriage
- Spouse's need for additional education/training to support himself/herself
- Spouse's income and ability to pay alimony
- Misconduct of the other spouse
The procedures for adoption are complicated and strictly regulated by statute. Adoption proceedings often occur in conjunction with proceedings for Termination of Parental Rights. The regulations differ depending on the relationship of the prospective parent to the child, for example, a court may waive certain requirements when the prospective parent is already the child's stepparent. To grant an adoption, the court needs to find that the adoption is in the best interests of the child. The court will appoint a guardian ad litem to represent the interests of the child in the adoption proceedings.
Prior to 2002, the process for obtaining a name change was fairly straightforward. Due, in part, to enhanced security around the country, the process for obtaining a legal name change has become much more complicated. If a woman desires to go back to her maiden name pursuant to a divorce action, that request may be pled in the divorce action and is generally granted as a matter of course. However, if the request is not made pursuant to a divorce, the court requires that the following inquiries be made: criminal background check, DSS check (for abuse and neglect of children), check of sexual predator registry and affidavit of petitioner stating reasons for name change.
A premarital/prenuptial agreement is a contract entered into between two prospective spouses prior to their marriage. Most often, premarital agreements are tailored to protect one spouse who has significant assets prior to the marriage to make certain that, in the event of a divorce, the other spouse will have no claim to said assets.