Divorce Laws in South Carolina
South Carolina Divorce Laws govern South Carolina divorces and other domestic relations issues. These can be found in the South Carolina Code Section 20 and in the case law of the state. The Domestic Relations Codes or statutes are the divorce laws set forth by the South Carolina Legislature. The divorce case law is formed by how the South Carolina family courts have interpreted the statutes. This page will take you through the steps of the South Carolina divorce.
South Carolina Code of Law on Divorce
Step One - Residency for South Carolina Divorce
In order to file for a divorce you must first meet the residency requirement of South Carolina. When both spouses are residents, the spouse filing for the divorce, called the plaintiff, must have lived in South Carolina for at least three months before filing for a South Carolina divorce. When only one spouse lives in SC, the plaintiff must have lived in the State for at least one year prior to filing. If you are the plaintiff and you live in another state, you can still file for a divorce in South Carolina if your spouse (the defendant) has lived in SC for one year. South Carolina Code of Laws Section 20-3-30 and 20-3-60.
Step Two - Grounds for a South Carolina Divorce
Your next step is to decide the grounds for your South Carolina divorce. In order to file for a divorce you must first meet one of the grounds requirement of the South Carolina Divorce laws. Most couples in South Carolina file for a divorce based on the no fault grounds of living separate and apart for one year.
However, you can proceed immediately with a South Carolina divorce if you have at fault grounds.
For adultery you will need to prove inclination and opportunity. Even if one party admits to adultery, that is normally not sufficient grounds for a divorce. Usually evidence of adultery is gathered by retaining a private investigator.
Desertion or more commonly called abandonment must be the complete cutting off of contact and support.
Physical cruelty requires some proof of the abuse such as doctor's reports. A single incident will probably not be sufficient cause, you will need to show a repetitive pattern. Mental or verbal abuse is not a grounds for divorce in South Carolina.
Habitual drunkenness is not going out on every Saturday night and getting loaded. It means that it is an everyday thing that prevents the person from performing the normal activities of everyday life. "In order to prove habitual drunkenness, there must be a showing that the abuse of alcohol caused the breakdown of the marriage and that such abuse existed at or near the time of filing for divorce." Epperly v. Epperly, 312 S.C. 411, 414, 440 S.E.2d 884, 885 (1994).
Mental Cruelty is not a grounds for divorce in South Carolina.
For all of the grounds for a South Carolina divorce the court will require sufficient evidence and usually the actual testimony of a third party witness. Just an admission by a party is normally not sufficient proof.
Step Three - Retain a South Carolina Divorce Lawyer
While the laws of South Carolina do not require you to retain a divorce attorney, the divorce decree can effect you for as long as you live. For example, the preference in South Carolina is to award permanent periodic alimony in those cases where alimony is awarded. These payments can continue until the death of one of the parties. It only makes good sense to hire a professional to protect your rights.
What to Expect in Your Divorce Trial
Under certain circumstances you may qualify for an annulment of the marriage rather than a divorce.
Annulment in South Carolina and Grounds for Annulment
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Paternity Case Law
In South Carolina, there is a common law presumption that a child born during lawful wedlock is a child of the marriage. See Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 68 S.E.2d 440 (1951), superseded by statute on other grounds as recognized in South Carolina Dep't of Soc. Serv. v. Burris, 297 S.C. 537, 539, 377 S.E.2d 578, 579 (1989). "Where the child is born after lawful wedlock, and after the lapse of the usual period of gestation, it should require a very strong state of circumstances to overthrow the presumption of legitimacy, such as impossibility of access, absolute non-access, abandonment, or something equally as conclusive." Id.
Despite the common law presumption, the family court found a "rebuttable presumption" of Mr. Fisher's paternity was created under S.C. Code Ann. § 20-7-956(A)(3) (2007)which provided: "the following evidence is admissible at a hearing to determine paternity . . . (3) Test results which show a statistical probability of paternity. A statistical probability of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity." At trial, Fisher presented the results of a test with the DNA Diagnostic Center showing a statistical probability of 99.999% that he was the father of the child. Consequently, there arose a rebuttable statutory presumption that Fisher is the father.
Termination of Parental Rights or TPR
Father's rights terminated after nine months of no contact with the child even though he was aware the child was his.
Doe v. Roe, 386 S.C. 624, 690 S.E.2d 573 (S.C. 2010)
Moreover, we find Mother has consistently and appropriately fostered stability for Daughter since her birth. It appears the Court of Appeals inappropriately placed Father's belated interest in fostering a relationship with Daughter above Daughter's significant interest in stability. We reiterate the TPR statute makes clear that if the parent's interests conflict with those of the child, it is the child's interests that shall prevail. § 63-7-2620. In the instant case, it is more important that Daughter's stability be maintained. We note that the TPR statute clearly states that six months is the appropriate time period for parental action. § 63-7-2570; see also Arscott v. Bacon, 351 S.C. 44, 54, 567 S.E.2d 898, 903 (Ct.App.2002) (" doubt as to paternity does not totally absolve a putative father of his responsibility to take steps to protect his rights" ). Father was put on notice by Mother in July 2004 that he could be the father of her unborn child, and was definitively put on notice in March 2005 that he was the likely biological father. Father failed to take any actions-legal or otherwise-for nine months with no justifiable reason for this delay.
Divorce Laws on College Expenses
According to the Divorce Laws in South Carolina,child support normally ends when the child reaches 18 and has graduated from high school. The parties can agree to pay for college expenses. Absent an agreement between the parties, the court may award child support for college expenses to ensure that children of a South Carolina divorce have the benefit of the college education they would have received had their parents remained together. See McLeod v. Starnes
There are South Carolina divorce laws where the court awarded continuing support where a child is disabled. The Family Court Act allows that court to make orders running past a child's majority "where there are physical or mental disabilities of the child or other exceptional circumstances that warrant it, . . . " § 14-21-810(b)(4), Code of Laws of South Carolina (1976).
Divorce Laws on Division of Marital Property and Alimony
Reiss v. Reiss A discussion of the divorce laws on the division of marital property and the factors to be considered in the award of alimony.
Craig v. Craig
Burch v. Burch Appreciation of Marital Property After Divorce, Private School Tuition, Deviation from Child Support Guidelines.
Spouse Dies Prior to Final Divorce Decree
The probate code provides that in determining whether a person is a surviving spouse, a divorce or annulment is not final until signed by the court and filed in the office of the clerk of court. S.C.Code Ann. § 62-2-802(c) (1987). In addition, the supreme court has held "that an action for divorce, being purely personal, terminates on the death of either spouse, and where the action for divorce is commenced, and one of the parties dies thereafter but before the entry of a final decree, the action abates and the jurisdiction of the court to proceed with the action is terminated." Louthian and Merritt, P.A. v. Davis, 272 S.C. 330, 332, 251 S.E.2d 757, 758 (1979).
Hatchell-Freeman v. Freeman, 340 S.C. 552, 532 S.E.2d 299 (S.C.App. 2000
Sale of the Marital Home
Brown v. Brown discussing divorce laws on transmutation and sale of marital home
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Divorce and Criminal Domestic Violence
Often a South Carolina divorce is triggered by domestic violence. Before your situation escalates, you need to remove yourself from the situation. You do not want to spend time in jail and neither does your spouse. Often the police will arrest both parties and let the judge sort it out later. Click on the link below for a full discussion of the South Carolina Criminal Domestic Violence laws.
Divorce and Criminal Domestic Violence
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