Divorce is stressful. In fact, it ranks among the top most stressful events in a person’s life. Going through a divorce is also uncertain. You may be asking how your relationship with your children with change, how your finances will be impacted, and how will you rebuild your life. These nagging questions can build anxiety. While all questions cannot be resolved quickly, having the proper information can help.
Most people already know what a divorce is, the official and legal termination of marriage. Most people already know though, that the marriage is over well before lawyers get involved. Divorce can be the climax of anger and emotional feeling toward your spouse. Divorce can also be a relief. Depending on your unique situation, your divorce could include the following,:
- Legal Authority for Divorce
- Alimony
- Property Division
- Debt Division
- Custody & Visitation
- Child Support
- Attorney’s Fees and Litigation Expenses
- Settlement Agreements
Legal Authority for Divorce (grounds)
South Carolina recognizes five grounds (or legal authority) for divorce:
- One Year Continuous Separation
- Adultery
- Desertion
- Physical Cruelty
- Habitual Drunkenness and Drug Abuse
A divorce based on one year continuous separation is a “no fault” ground for divorce. Adultery, Desertion, Physical Cruelty, and Habitual Drunkenness/Drug Abuse are fault based grounds. Fault can impact the division of property, in that it is a factor the judge may consider. Fault can also bar alimony. Therefore, it is important to carefully consider the grounds for divorce. More on the grounds for divorce can be found here. If one cannot qualify for any of the five, South Carolina Law allows one to seek separate support and maintenance. Separate support and maintenance is similar to alimony in that it requests the other spouse to pay money. Other issues can be resolved in like property division, name changes, child support, and child custody.
Alimony
The purpose of alimony is to provide enough money so that the supported spouse can continue the standard of living they had during the marriage. However, no formula exists for calculating the amount of alimony. Recognition must be made however, that the same amount of money supporting one household, now must support two. This can result in major adjustments to each party’s standard of living and may necessitate the supported spouse seeking new or additional employment. There are several types of alimony, including:
- Permanent Periodic
- Lump Sum
- Rehabilitative
- Reimbursement
- Separate Support and Maintenance
- Other and/or a combination of the above
Property Division
Recognizing that marriage is also an economic partnership, marital property must be divided between the parties. The point is not to identify who paid for what or in whose name is the property is titled, but to recognize each party’s contributions to the acquisition of marital property. In other words, while one spouse may be the major income producer, the other spouse makes important contributions to the marriage such as managing the household and raising children. In general, marital property is all property which was acquired during the marriage. However, property owned before marriage could become marital property depending on the circumstances.
Debt Division
Just as marital property must be divided, martial debt must be divided also. Marital debt is any debt, whether in one or both spouse’s names, that was incurred for the party’s joint benefit. Marital property, together with marital debt, make up the marital estate.
Custody and Visitation
Custody and visitation can be one of the most controversial issues in a family law case. Custody is the authority to make decisions regarding the parties’ children. Visitation is the right of the non-custodial parent to spend time with his or her children. The issue of custody can be a particularly emotional and complex problem. There are numerous types of custody including:
- Sole custody
- Joint legal custody
- Joint physical custody
- Primary custody
- Secondary custody
- Shared custody
- Divided custody
- Primary placement
- Primary physical custody
It is important to fully understand the type of custody a party is asking the court to award or the type of custody included in an agreement. A parent who has sole custody has the decision making authority regarding the party’s children. “Joint Custody” generally provides the parent with whom the children are living with at the time the decision making authority, at least regarding daily activities. Custody determinations are resolved by asking what is in the children’s best interests. However, South Carolina law uses many factors to make that determination. Standard visitation can include every other weekend, Wednesday dinner night, alternating holidays, and up to half of the summer. However, visitation issues can get more complex, if the non-custodial parent is located some distance away from the custodial parent.
Child Support
Both mothers and fathers are legally obligated to support their children, whether born within or outside of marriage. Failure to support is a misdemeanor and can be used to terminate the parent’s rights. The amount of support must be reasonable. A reasonable amount is based on the parent’s income, assets, and ability to earn an income. Most support is based on the South Carolina Child Support Guidelines. The South Carolina Department of Social Services has an online calculator based on the South Carolina Child Support Guidelines that can be used to determine the amount of child support. It is located here, http://www.state.sc.us/dss/csed/calculator.htm. Other issues in child support include health insurance, life insurance, educational expenses including college, and support for children with mental or physical disabilities.
Attorney’s Fees and Litigation Expenses
In American courts, the general rule is that each party is responsible for their own attorney’s fees. However, South Carolina laws allow the judge in family law cases to order the other side to pay attorney’s fees and costs to a party who requests it. These fees must be reasonable, as set out by various factors deemed to consider the reasonableness of a fee. While the law allows for attorney’s fees and costs, it is not mandatory, and is left to the discretion of the judge. The judge can also order one party to pay the other party’s anticipated attorney’s fees.
Separation/Settlement Agreements
Separation and Settlement Agreements can resolve many if most of the issues involved in a divorce. Separation Agreements are agreements between the parties contemplating or following a physical separation. Settlement agreements are made during marital litigation. While parties may agree on alimony, child custody, child support, and property and debt division, the family court has the authority to determine whether the agreement is fair and reasonable. Additionally, agreements relating the children’s rights must be in the best interests of the children.
This is a general overview, but you should discuss your unique situation with an attorney of your choosing.
You can contact Brian at 888-454-1338.
