What If I Need a Divorce?
Initial Consultation Questions & Answers
What is it like to go through a divorce?
Going through a divorce can be as difficult as facing a major illness. It is often a life- Getting a divorce does not just mean the dissolving your marriage. You often have to also confront the issues of equitable division of property, maintaining or providing continuing health insurance, custody of your children, spousal support and alimony, and child support.
What are the grounds for divorce in South Carolina?
• Desertion for a period of one year
• Physical cruelty
• Habitual drunkenness or drug abuse
• One year continuous separation.
Will my divorce be complicated?
Your divorce may be simple and straightforward or incredibly complex. You might not know whether your issues are simple or complex until you have talked to a knowledgeable divorce attorney.
Do I have to have a court order or separation agreement to start my one year separation?
You do not need to have a court order or a separation agreement for your one year separation to begin. You and your spouse need to be living in separate residences without any periods of getting back together. You will need at least one witness who is not a minor child who has independent knowledge that you and your spouse are living separately.
Alimony Questions and Answers
Will I get alimony in my divorce?
Whether or not you get alimony in your divorce depends on many factors, including:
• The length of the marriage and ages of the parties;
• The physical and emotional health of each spouse;
• The educational of each spouse and whether the supported spouse needs additional education;
• The employment history and earning potential of each spouse;
• The standard of living established during the marriage;
• The current and future earnings and expenses of both spouses;
• The marital and nonmarital properties of the parties;
• Custody of the children,
• Marital misconduct or fault of either or both parties
• The tax consequences to each party;
• The existence and extent of any support obligation from a prior marriage
Are there different kinds of alimony?
There are several different kinds of alimony that can be awarded by a South Carolina Family Court Judge. These include:
• Permanent periodic alimony
• Lump sum alimony
• Rehabilitative alimony
• Reimbursement alimony
• Separate support and maintenance
• Other alimony as appropriate
How much alimony will I get?
Unlike with child support, there are no guidelines to assist in determining how much alimony should be paid. You may not know whether or not you might have to pay alimony, or whether you might be entitled to receive alimony. Talking to a knowledgeable divorce attorney can help you make this determination.
If I think I might get alimony or might have to pay alimony, is there anything I should know?
Yes. Adultery is a bar to alimony in South Carolina. Adultery can be established by proving opportunity and inclination. This means that if there is proof that you or your spouse has spent some amount of time alone with a member of the opposite sex to whom they have shown a romantic inclination, there may be proof of adultery. If you think you may be entitled to alimony, you need to be extremely careful about spending time alone with members of the opposite sex, even if you are not romantically involved because proof of one incident of adultery may possibly bar alimony forever. If you think you might have to pay alimony, it is very important to remain aware of any signs that your spouse might be committing adultery.
What is a child custody case?
If you have and your spouse have children, and you cannot decide on who they should live with, you may have a custody case. The most important issue in a custody case is the welfare of the parties' child or children. Custody cases are often extremely complex, and require the involvement of a Guardian ad litem and various therapists.
What is joint custody?
Joint custody as a legal concept which gives the parents the right to any and all information about the children. One of the parents is usually the primary custodial parent in a joint custody arrangement, which usually means that they have the final say-so in major decisions about the children.
What is shared custody?
Shared custody means that the non-custodial parent has at least 110 overnights with the children each year. Child support is adjusted downward when there is shared custody.
Can I change an existing custody arrangement?
Child custody and visitation can be changed either by agreement of the parties or by Order of the Court. To get the Court to change custody, one of the parties must be able to show that circumstances have substantially changed since the previous custody arrangement was ordered. You may not know whether the circumstances of your child custody and visitation arrangement have changed enough to warrant a modification of child custody of visitation. Talking to a knowledgeable divorce attorney can help you make this determination.
What is a guardian ad litem?
A Guardian ad litem is a person, usually an attorney, appointed by the Court to represent the interests of minor children in custody litigation. We are providing a link to the Guardian ad litem statute for more information on the role of the Guardian ad litem.
What is interstate custody?
Interstate custody cases arise when the parents live in different states, or when the children have moved from state to state. These cases are quite complex. We are attaching a link to South Carolina's version of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).
What if I have a question about interstate custody?
We can give you the necessary information about your custody situation, even if you, your child, or your spouse or ex-spouse live outside of South Carolina. We will advise you about the appropriate place to file your case.
Will I get child support?
Unlike alimony, there are clear guidelines to help determine child support amounts. However, the South Carolina Child Support Guidelines do not apply in cases where the parties' combined monthly income is more than $20,000.00. We often employ a forensic accountant to extrapolate a child support amount when the parties are high-income.
What is marital property?
The only property that can be divided by the parties is marital property. Generally, marital property is any property you buy during your marriage, even if only one of you is the listed owner. Usually, property brought to the marriage or inherited by one of you is not marital property. Any inherited property or individual gifts should be kept separate to insure that it remains non-marital.
How does the court decide how to divide marital property?
Many factors are involved in the equitable apportionment of property. These include:
• Length of the marriage and ages of the parties;
• Marital misconduct
• Value of the marital property.
• Contributions of each spouse to the property;
• Incomes and earning potential of the spouses;
• Physical and emotional health of each spouse;
• Need for additional education;
• Nonmarital property of each spouse;
• Whether alimony has been awarded;
• Custody of the children
• Tax consequences
• Other support obligations
• Encumbrances on the property
What is a prenuptial agreement?
Couples often sign prenuptial agreements before they are married. These agreements are binding if they are done properly. A prenuptial agreement usually governs the rights of the parties if they separate and/or divorce.
Do I need a prenuptial agreement?
It is often difficult for couples who are in love and know they want to spend their lives together to consider a possible divorce. However, having a prenuptial agreement often removes some of the potential conflict from an otherwise happy marriage. These agreements do not have to be approved by the Family Court to be valid, and do not require that a case be filed in Family Court at the time the prenuptial agreement is signed.
What is a postnuptial agreement?
Sometimes after a lengthy separation or even after a case has been filed in Family Court, a couple decides to attempt a reconciliation. In those situations, we often recommend that they sign reconciliation agreements setting out the conditions of their reconciliation, including property distribution and support obligations. We often call these agreements "reconciliation agreements." These agreements are binding if done properly. These agreements do not have to be approved by the Family Court to be valid, and do not require that a case be filed in Family Court at the time of signing.
What is a separation agreement?
Most of our clients reach an agreement on the issues involved in the breakup of their marriage. These agreements are frequently put into a written document which is signed by the parties. These signed agreements are not enforceable until and unless they are approved by the Family Court and made into a Court Order. After this has happened, the terms of such a written agreement are enforceable by the Court.
Do I need a separation agreement for my one year separation to begin?
You do not need to have a separation agreement for your one year separation to begin. You and your spouse need to be living in separate residences without any periods of getting back together. You will need at least one witness who is not a minor child who has independent knowledge that you and your spouse are living separately.
Natalie Parker Bluestein is 2014 President of the Charleston County Bar Association