Individuals that reside in South Carolina that are already involved in or believe they will soon be involved in a family law matter need to have an understanding of how the laws apply to the facts of their particular case. Family law encompasses a variety of cases including: divorce, child custody, child support, father’s rights, and alimony. South Carolina family law cases can have a substantial effect on the relationship a person has with their children, finances, and mental well-being.
This is a basic South Carolina family law primer, and it will serve to give you an understanding of the laws that govern the most common family law matters. Understanding how these laws will apply to your situation is the first step to navigating the rocky waters of your family law case. Step two is determining how much more legal help you need. We can help, by providing resources throughout this site and by connecting you – at no charge – to a local South Carolina family law professional.
South Carolina Divorce
South Carolina statute (law), specifically Section 20-3-10, governs the rules for divorce that must be followed. South Carolina allows for a divorce to be filed on both “no fault” and “fault” grounds. A no-fault divorce is one in which the parties agree that the marriage has broken down and that efforts at reconciliation have failed. A fault divorce in South Carolina can be granted if one of the following grounds (reasons) is proven in court:
- Desertion for a period of one year;
- Physical cruelty; or
- Habitual drunkenness, provided that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug.
Because of the difficulty in proving, with evidence, the above-mentioned “fault” grounds, the vast majority of people file for a no-fault divorce. Keep in mind that proving the fault grounds requires more than just alleging these things are true. A judge will need evidence, such as witnesses, pictures, police reports, etc., to prove your case. This can make what should be a simple divorce extremely costly and take a long time, which is why most people opt for a no-fault divorce.
Residency Rules in South Carolina
South Carolina does not allow individuals that live in another state to file for divorce in South Carolina. An individual must prove that they meet certain residency requirements first. South Carolina statute, found at Section 20-3-30, requires that at least one of the spouses must be a resident of the State of South Carolina for at least one year prior to filing the petition for dissolution of marriage. This law is specifically written so that individuals outside of the state cannot move to South Carolina and quickly file for divorce because the laws seem better for that person. All 50-states have similar laws, but South /Carolina’s residency period is one of the longest in the country. The relevant statute (found at Section 20-3-60) also requires a person that lives in South Carolina to file a divorce in the county where either: 1. The plaintiff or defendant lives when the divorce is filed, or 2. In the county where the parties last resided in the same house.
Mandatory Waiting Period
Each state has their own waiting period to obtain a divorce as well and South Carolina is no different. The relevant statute, Section 20-3-80 states that parties must wait a mandatory term of 3-months prior to a final decree of dissolution of marriage being entered from the date of filing. There are exceptions to this rule, however, such as if a party is seeking a divorce on grounds of desertion for more than one year (Section 20-30-10(2)). In this case, the final divorce decree may be entered as soon as the respondent (defendant) has been adjudged to be held in default.
Property Division in a South Carolina Divorce
South Carolina is one of a majority of states that follows the rule of an “equitable division of property.” The specific statute that governs the property division rules in a South Carolina divorce can be found in Article 5, of the South Carolina Code of Laws Section 20-3-610. What this means is that the court will not necessarily divide the property acquired during the marriage evenly on a 50/50 basis. The court will instead divide the property according to what the judge deems is “equitable” or fair under the specific circumstances of each individual case. In many cases, this is a 50/50 split of property (and debts!), but many other cases are not evenly distributed and instead are distributed according to what a judge believes is fair. The court divides property that is “marital” in nature. This is property that has been acquired during the marriage. Property that was owned prior to the marriage by either party or received by either party as part of an inheritance are not marital property and will not normally be divided. Marital property is specifically defined by statute in Section 20-3-630.
The court, in dividing property according to what it calls an “equitable apportionment of marital property”, can take numerous factors into account. The main factors the court will consider, according to Section 20-3-620 of the South Carolina Code of Laws, are as follows:
- The duration of the marriage together with the ages of the parties at the time of marriage and the time of divorce;
- The marital misconduct or fault of either of the parties, specifically if the marital misconduct affected the financial situation of either or both of the parties;
- The value of the marital property and the contribution either party made to acquiring the property, whether the contribution be a homemaker, preservation, depreciation, or appreciation in value of the marital property;
- The income and earning potential of each spouse and the opportunity for future earnings;
- The physical and mental health of each spouse;
- The need of each spouse for training or schooling to achieve the other spouses earning potential;
- The non-marital property of each spouse;
- The existence or nonexistence of retirement benefits of either spouse;
- Whether maintenance or alimony has been awarded to either spouse already;
- Whether one spouse will be awarded the family home because that spouse will have residential custody of the children;
- The tax consequences to each spouse of the distribution of the marital property;
- The existence of any outstanding support obligations from a prior marriage or support matter;
- Any liens or encumbrances on the marital property and any debt that should be equitably divided between the parties;
- Child custody arrangements at the time of entry of the order dividing marital property; and
- Any other relevant factor the court determines is important.
Alimony – Spousal Maintenance in South Carolina
South Carolina law, found at Section 20-3-130, allows for the award of alimony (sometimes called spousal maintenance) to be paid from one spouse to another should a court consider it appropriate to do so. Alimony is not allowed to be awarded to a spouse that has committed adultery.
By statute, the court has discretion to make an award of alimony from one spouse to another based off one of six different designations:
- Periodic Alimony: Periodic Alimony is alimony that is paid on a recurring period (Example: monthly alimony payments for a set period of time). This can be modified by either party due to a change in circumstances and terminates upon the remarriage or cohabitation of the spouse receiving alimony. This can be permanent in nature!
- Lump-Sum Alimony: This is a total sum (such as $10,000) that is to be paid either as a one-time payment or over a period of time to your spouse. This is not modifiable in the future.
- Rehabilitative Alimony: This is similar to lump-sum alimony in that it is a specific amount of money that is to be paid to your spouse either in a one-time payment or periodically until the finite amount is reached. The purpose is generally to help get a spouse that may not have been working for years to get training or education so that they can begin paying their own way post-divorce.
- Reimbursement Alimony: This is also a set amount of alimony that is meant to reimburse one spouse from the future earning of the payor spouse based upon circumstances or events that occurred during the marriage.
- Separate Maintenance and Support: This is a type of maintenance where the spouses are not filing for divorce but are currently living separately from each other.
- Other Spousal Support: Alimony to be paid from one spouse to another as a court deems just and equitable under the circumstances.
South Carolina Child Support
South Carolina requires both parents to support their children financially. Title 63 of the South Carolina Code of Laws governs child support payments. The basis of child support is that the parent that is not the primary custodial parent should pay money to the primary custodian of the minor child to help support the child. South Carolina follows a child support standard known as the “Income Shares Model” for determining how much support should be paid by one parent to the other to financially support the children. The Income Shares model is based on the idea that kids should be able to receive a similar amount of support from both parents had the parents remained together.
The legislature in South Carolina has granted power to the Office of Child Support Enforcement to establish guidelines for minimum amounts of child support to be paid from one parent to the other. The court will look at both parents combined income, resources and ability to provide economic support for minor children. The current guidelines can be found at the Division of South Carolina’s Department of Social Services. There are nine categories of expenditures that are factored into developing the income shares model of child support: food at home, food away from home, shelter, utilities, household goods, clothing, transportation, ordinary health care, and recreation. Specifically not included are the categories of: child care, personal insurance (life, disability) gifts, contributions, and savings.
South Carolina has made a specific child support calculator (here) for parents to estimate the amount of support that should be paid to the custodial parent. A non-custodial parent may also be ordered to pay additional sums for a portion of child care (daycare) so that the custodial parent can pursue full-time employment as well. This may make the child support order increase substantially.
South Carolina Child Custody
South Carolina child custody decisions are based on a standard known as the “best interests of the child.” The relevant law (statute), found at South Carolina Children’s Code Section 63-15-230 states that the court shall make a final custody determination in the best interest of the child based upon the evidence presented. This means that the court will not necessarily agree 100% to what the parents or a court appointed “guardian ad litem” (an attorney to represent the child’s best interests that provides a recommendation to the judge) has to say, but instead, on what the judge believes will be best for the child. The court can then order either sole custody or joint custody of the children to the parents.
The court will analyze a variety of factors in making their findings as to what it believes is in the child’s best interests. The main factors the court will use, according to Title 63 of the South Carolina Children’s Code, are:
- The child’s preference, with the court considering the child’s age, experience, maturity, judgment, and ability to express a preference (See Section 63-15-30);
- Any history of Domestic Violence, which may include physical abuse or sexual abuse (See Section 63-15-40);
- The emotional and psychological development and state of the child as well as the parents;
- The history of the child’s schooling records (whether passing grades, failing, attendance, etc.);
- The environment that either parent may provide the child in their own home, such as the community each parent lives in, the ability of the child to have his/her own bedroom, and the stability in the living arrangement of the child at either parent’s house.
South Carolina courts can apply many different factors to making their child custody decision, but these are the main elements that are analyzed by the judge.
Sole Custody vs. Joint Custody in South Carolina
South Carolina’s Children’s Code Section 63-15-210 defines the difference between Sole Custody and Joint Custody as follows:
(1) “Joint custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.
(2) “Sole custody” means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.
Most states follow the belief that joint custody is the best arrangement for children involved in a custody dispute. However, South Carolina is one of a growing number of states that bucks that trend and believes that an award of sole custody to one parent, while allowing visitation rights with the other parent can be in the child’s best interests. This is especially true when it comes to parents that want to divide custody by having the child spend 50% of the time with each parent, such as one week with one parent, and the other week with the other parent.
The court’s reasoning for this is that parents that frequently argue or cannot get along put stress on the child. If the parties have to communicate regarding every child rearing decision, it is likely that the child will be present for some or much of this arguing and fighting and that is not beneficial to the child. To combat this, South Carolina’s threshold for awarding sole custody to one parent is lower than many states in an effort to avoid having the child present for arguments and frequent fights between parents. And when it comes to stability of living arrangements, the courts do not like when a child switches homes on a weekly basis with exception to weekend visitation agreements as it weekday switching can throw off a child’s schooling stability.
To further illustrate the point of the South Carolina Courts believing that an award of sole custody is normally in the child’s best interests, we can point to numerous Appellate an Supreme Court opinions, such as Scott v. Scott, 579 S.E.2d 620 (S.C. 2003). In this South Carolina Supreme Court case, an award of joint custody was awarded, but they expressed that this is to be the exception, not the rule. The Supreme Court judges explicitly wrote the following: “Although joint or divided custody is now permitted under South Carolina law, visitation amounting to divided custody is disfavored by our supreme court.” The moral is this: regardless of whether sole custody or joint custody is awarded by the court, both parents will be granted extensive parenting time with the child and will have access to school records, medical records, and enjoy the right to attend extracurricular and school related activities.
South Carolina Father’s Rights
South Carolina has had a long history of automatically granting primary custody rights to mothers throughout the long history of the State. In fact, it wasn’t until May 18, 1994 that the South Carolina Legislature abolished the “tender year’s doctrine” which allowed mothers to almost always win an automatic granting of custody, especially if the child was young. This all changed, and the law that governs child custody was actually rewritten to explicitly state, in Section 63-15-10 of the South Carolina Children’s Code: Tender Years Doctrine abolished. The “Tender Years Doctrine” in which there is a preference for awarding a mother custody of a child of tender years is abolished.
While this may make it appear as though father’s have an even footing with regards to child custody, it is still a fact that most father’s do not assert their rights properly and fall victim to several pitfalls they need to avoid. Father’s rights advocates in South Carolina believe that it is essential for a father to be present in his child’s life, support his child, work hard to be the primary caretaker on a regular basis, and provide substantial proof of these activities through witnesses, written documentation, and other evidence to win his case.
The Next Step
Now that the basics of South Carolina family law have been explained, it is important to apply the facts of your particular case to the laws found within this family law primer. Further reading of family law issues and gaining a better knowledge of the laws that apply to each particular scenario is essential to protecting your rights in a South Carolina family law matter. The final step is deciding if additional expert legal help is needed. If that is the case, we can connect you – at no charge – to a local South Carolina family law professional who can help.