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Family Law Questions

Areas of Concern in a Family Law Matter and Common Questions in South Carolina:

The process in the family court can be overwhelming and confusing.  The brief outline of the process in the family court is deigned to take away some of the anxiety and shed some light on the process when dealing with the family court.  Seek further advice of a competent attorney and do not rely solely on the information discussed on this web site.
Generally, before the court will grant any type of relief in a divorce action there must be grounds. Grounds simply mean the law must allow it. For example, a person/spouse simply can not get divorce simply because they want a divorce; they must prove to the court that they in fact are entitled to a divorce based on one of the five grounds permitted in the state of South Carolina. The Court can grant a divorce on one of the following grounds:

  1. Adultery
  2. Habitual Drunkeness or Drug Abuse
  3. Physical Cruelty
  4. Desertion
  5. Living Separate and Apart for at least one year

If the parties can not prove to the court that one of the five grounds have taken place, the parties can not get a divorce. This can seam quite frustrating to a spouse who desires to move on with their live after the marriage is clearly not going to work.  What can make the situation even more confusing is the law in South Carolina does not recognize a “Legal Separation”. However the Family Court is given the authority to grant either spouse or both spouses an “Order to Live Separate and Apart”. This order in essence serves most client’s needs. The greatest distinction between a “Legal Separation” and an “Order to Live Separate and Apart” is quite simple. If any party commits adultery during the marriage they can be sued for adultery and the divorce could be granted on the grounds of adultery unless the spouse has a defense that will void the adultery claim.

So, a client is sometimes faced with the dilemma of living with their spouse, wanting a divorce, but not having any of the five grounds. Thus, before the court can grant them an Order to live Separate and Apart from their spouse the couple needs to move into separate residences. At times, the parties agree to move into two separate residences and they can proceed with an uncontested divorce or an uncontested Order to live Separate and Apart.  Please see the quick check list for some of the matters that should be taken into consideration when a party desires to get divorced or enter into a final and binding Order to live Separate and Apart. Generally, most law firm’s refer to the final agreement as a “Marital Settlement Agreement” or a “Martial Settlement and Custody Agreement” if the couple has child(ren).

If a Spouse does have grounds of a divorce and the couple is still living together a spouse can hire an attorney and seek a divorce based on the fault based grounds. For example, if one the Husband or Wife is committing adultery, being physically cruel, or abusing drugs, or have moved out of the home the parties can file a Summons and Complaint and request a Temporary Hearing addressing attorney fees, child support, temporary alimony or separate maintenance, restraining orders, and other types of relief. Generally, the court will hear this type of hearing within 30 days. This hearing is temporary in nature and thus it is not final. A Final Hearing takes longer to be placed on the court docket ranging from 2 to 4 months. Sometimes it is more, and sometimes it is less. Be certain to ask your attorney what the time frame is for the county that you will be seeking your divorce or hearing.  
If the parties have an agreement they can go directly to the Final Hearing. This will save in attorney fees, stress, and court time. However, if the parties do not have an agreement they will most likely appear in court for a Temporary Hearing. After this hearing, the parties will participate in Discovery, Mediation, Pre-trial Conference, and Final Hearing/Trial. Clearly, it is in both parties best interest to resolve their differences instead of having the court decide for them. There are more than 50 family court judges and each one will see facts and issues differently.  Thus I tell each client to try and resolve their difference with their spouse to save time, stress, and let’s face it-attorney fees. Attorneys make more money when their client’s are litigating their differences. Thus all parties should try and resolve their disputes between themselves.

Child Support

Child Support is rarely something the parties should be fighting over. The reason is child support is based on a very simple and straight forward formula. In fact, there is a calculator set up.  Reasons to fight over child support include, but are not limited to, if one parent is trying to claim that they make less money or if one parent needs more money. For example, if a parent is claiming they do not make the same amount as they did before. The courts can impute a certain amount of income. Or, for example, a child is a special needs child (because of a mental or physical disability) the court could award an amount of child support greater. This would be a reason to deviate from what the Department of Social Services has dictated for what is needed in child support. 

Child Custody

There are generally two types of custody. Physical and Legal Custody. Physical refers to who the child lives with most of the time and Legal refers with who gets to make the major decisions for the child. Most of the time the parties have Joint Legal Custody and One party Physical Custody. You can also have Joint Legal Custody and Joint Physical Custody with one party being designated and the Primary custodial parent. Some judges will require that one parent be given the final decision making authority. This can make the process more frustrating and scary for the parent. However, the court is trying to prevent future litigation between the parents over the children.

Marital Property

The Family Court Judge has the task of dividing martial property. The court when doing so weighs certain factors. Martial property is any and all property bought by the parties during the marriage. However, sometimes property that would not be considered marital property can become comingled or transmuted into marital property. For example, if a party inherits some money. They then take this money and pay off the family car on the mortgage on the home that the parties bought during their marriage. The Family Court could find that the property remains marital despite one party making such a large contribution to the property from funds they inherited.  

Remember, items like retirement plans and 401(k) are marital property. Sometimes, even settlement from personal injury clams can be marital property.

Attorney Fees

A common question that arises: “Can I make my spouse pay for my attorney fees?” The answer is sometimes. The court generally will look at who can afford to pay the attorney fees, who caused the attorney fees to incur, and who is a t fault. The Family Court Judge is also required to look at the competency of the attorney and the beneficial results obtain on behalf of their client.

Alimony

Alimony is given to one spouse by the other. Adultery can sometimes bar one party from receiving alimony.