Filing for Divorce in South Carolina

Filing for Divorce in South Carolina

Getting a Divorce in South Carolina? Divorce Law Cheat Sheet for the State of South Carolina

1. What are the residency requirements for filing for divorce in South Carolina?

You or your spouse must have lived in South Carolina for at least a year before filing for divorce there. If you both are residents of South Carolina when you file, then the residency requirement is just three months.

If you are in the military and stationed in South Carolina on active duty, you also may file there, as long as you meet the length-of-time requirements.

You must file in the county in which your spouse lives or, if your spouse is not a resident of the state, the county in which you live or the county in which you and your spouse last lived as husband and wife.

2. Does South Carolina have a waiting period?

Yes, the court will not take action on your case until at least two months after you file, and it will not grant a divorce decree until at least three months after you file, unless you are filing on the grounds of desertion or separation for one year.

3. Does the state have grounds for divorce?

You may file for a divorce on these grounds in South Carolina:

  • Adultery, which means your spouse had an affair.
  • Desertion, meaning your spouse has been gone for at least a year.
  • Physical cruelty.
  • Habitual drunkenness or drug use.
  • Living apart for at least a year.

If the court finds any evidence of collusion, meaning you and your spouse planned any of the actions above with the intention of getting a divorce, then the court will not grant you one.

4. How does South Carolina determine the division of property?

You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you.The court divides your marital property, which in South Carolina is any property that you and your spouse acquired while you were married, regardless of whose name is on the title.

Your separate property remains your own. This includes:

  • Property that you acquired by inheritance or by gift (gifts from your spouse, however, are marital property).
  • Property that you acquired before you were married or after any agreements or orders dividing your property in your separation or divorce.
  • Property that you received in exchange for your separate property.
  • Property that you and your spouse identified as separate in a prenuptial agreement.
  • Any increase in value of your separate property, unless that increase in value was a result of efforts on the part of your spouse.

The court will try to divide your marital property as equitably, or fairly, as possible. It will take into account these factors:

  • How long you were married and how old you each were at the time of your marriage and your divorce.
  • Separate support or other agreements between you and your spouse.
  • Who was at fault in your divorce if it affects or has affected you and your spouse’s economic circumstances.
  • The value of your marital property.
  • You and your spouse’s contributions to the acquisition, appreciation or depreciation of your property, including contributions as a homemaker. The court also will consider the quality of your contribution, beyond the fact that you contributed.
  • You and your spouse’s incomes, earning potential and opportunities to acquire future assets.
  • You and your spouse’s physical and emotional health.
  • Whether you or your spouse needs additional training or education to reach your income potential.
  • What separate property you and your spouse each has.
  • Whether alimony has been awarded.
  • If you have children, whether the custodian should get or live in your family home for the benefit of your children.
  • The tax situations you each would face after your property is divided.
  • Whether you or your spouse is responsible for any existing support orders, from a previous marriage or otherwise.
  • Whether there are any lines on your marital property or on you or your spouse’s separate property, or your share any other debts.
  • Your child custody arrangements and responsibilities.
  • Any other factors the court considers relevant.

5. Does South Carolina require mediation before a divorce is granted? 

Mediation is not always required, though the court may order it in your case if you and your spouse disagree over child custody or visitation.

6. How does the state determine child custody?
Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life””where a child goes to school, what faith he or she is raised in and other biggies.Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.

The court will seek whatever arrangement is in your child’s best interest. The court in South Carolina will weigh your child’s preference based on his or her age, maturity, experience and judgment.

The court also will weigh any evidence of domestic violence, including physical or sexual abuse. And it will consider you and your spouse’s circumstances, the best fit for your child spiritually and in other interests, and any other aspects that are important in your case.

The court may order visitation for your child’s grandparents if it finds that would be in the best interest of your child and would not interfere with parent/child relationships. The court will consider the relationship your child had with his or her grandparents before visitation was requested.

7. How does the state calculate child support?
Child support in South Carolina is determined by a set of state guidelines based on you and your spouse’s combined gross income. The support amount related to your income level is then split between each of you based on the percentage you earn of that total income.The cost of health insurance for your child is added on to the basic support amount, as are work-related child care costs.

The court presumes this basic amount is appropriate, but it will take into account these factors:

  • Your child’s educational expenses for private, parochial or trade school or college.
  • How your marital property was divided.
  • What debts you or your spouse has.
  • Whether you have more than six children.
  • You or your spouse’s unreimbursed extraordinary medical or dental expenses.
  • Your child’s unreimbursed extraordinary medical or dental expenses.
  • Any mandatory deductions for retirement pensions or union fees for you or your spouse.
  • Whether you or your spouse has to support other dependents.
  • Any court-ordered or legally required fixed monthly payments you or your spouse must pay.
  • Whether your child has any significant income.
  • Whether the non-custodial parent’s income is significantly less than the custodial parent’s income, making the guideline amount financially impractical.
  • Whether alimony is being awarded.
  • Any agreement that you and your spouse have reached on your own or through an attorney.

Your support amount also may differ if you have shared parenting arrangements, meaning your children are with each of you more than 109 nights a year, or you have a split custody arrangements, meaning you have two or more children, and there is at least one child residing primarily with each of you.

8. How does the state determine and calculate alimony?
Alimony is not automatically a part of a divorce case, but you or your spouse may request it “” unless you commit adultery before you formally sign a written property or marital settlement agreement or before the court has entered an order for separate support or an order approving your property or marital settlement agreement.

The court may award one of the following types of alimony depending on your situation:

Periodic alimony is a fixed, regular payment that may be revised or discontinued as your circumstances change. It ends if you remarry or live with someone, or if you or your spouse dies.

Lump-sum alimony is one single total amount, paid either all at once or periodically. The court might award this in a case where alimony is deemed appropriate, but only for a set period or a set amount. It ends if you die, but continues despite remarriage or changed circumstances.

Rehabilitative alimony is designed to provide a fixed sum, paid at once or periodically, that’s related to your efforts to complete your job training or education. It ceases if you remarry or live with someone or if you or your spouse dies.

Reimbursement alimony is a fixed sum, paid at once or periodically, to reimburse you from your spouse’s future earnings for events or circumstances during your marriage. It is discontinued if you remarry or live with someone or you or your spouse dies.

To decide whether to award alimony and if so, what kind and how much, the court will take into consideration:

  • How long you were married and how old you and your spouse were when you were married and divorced.
  • You and your spouse’s physical and emotional conditions.
  • You and your spouse’s educational backgrounds, as well as any need for additional training or education.
  • You and your spouse’s employment histories and earning potential.
  • The standard of living you established while you were married.
  • You and your spouse’s current and anticipated earnings and expenses.
  • You and your spouse’s marital and non-marital property, including how your property was divided in your divorce.
  • Custody of your child, particularly if circumstances limit the custodial parent’s opportunities for employment.
  • Who was at fault in your divorce if it affects or has affected you and your spouse’s economic circumstances.
  • The tax situation you each would face if alimony is awarded.
  • Whether you or your spouse has support obligations from a previous marriage or for other reasons.
  • Anything else the court considers relevant.

9. Is there a waiting period before remarriage in South Carolina?
No, you are free to remarry after the court delivers the final judgment ending your marriage.

FOR MORE INFORMATION:

South Carolina’s state statutes are online, here.

The state’s child support guidelines are online, here.

The Child Support Enforcement division can be found, here.

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