Frequently Asked Questions
Any kind of legal proceeding can be confusing. The process can be long, nuanced, and cumbersome. At the LaMantia Law Firm, however, we have decades of experience in handling all aspects of family law and criminal law.
We encourage you to contact us for a free initial consultation during which we may address your case-specific questions. We also invite you to visit our Frequently Asked Questions page to get you started down the path to answers.
Separation & Divorce
What are the grounds for divorce in South Carolina?
Courts in South Carolina recognizes four “fault" grounds for divorce:
- Physical Cruelty
- Habitual Drunkenness and/or Drug Abuse
In addition, there is one “no-fault" ground recognized by South Carolina courts, called “Living Separate and Apart for One Year Without Cohabitation."
In order to obtain a divorce, the party filing for divorce must prove at least one of these grounds with legally sufficient evidence. “Legally sufficient evidence" refers to that evidence which satisfies the Court that one of the grounds exists, and this is done usually via third party testimony, a witness or private detective who can testify to a couple's lack of cohabitation, or a party's infidelity.
Do my spouse and I need to agree to get a divorce?
No. Your spouse cannot stop you from obtaining a divorce if you can prove your grounds for divorce and your spouse does not have a legitimate defense to dispute your claim.
What is a legal separation?
South Carolina does not recognize a legal separation. A couple is either married or not married. However, there is a similar type of action called “An Action for Separate Support and Maintenance." This action is very similar to other states' legal separations.
What is separation?
A separation is when the parties live in two separate locations. Living in two separate bedrooms of the same house does not qualify as a separation. If you have a separate guesthouse or a garage apartment, you need to discuss this situation with an experienced attorney, such as the attorneys at The LaMantia Law Firm, about whether the court would consider this a separate location.
Do I need to live in South Carolina to be able to file for divorce here?
To file for divorce in South Carolina, one party has to have resided in South Carolina for at least one year if the other spouse lives in another state. If both parties have lived in South Carolina for at least three months, either party can file for a divorce in South Carolina. If one party has lived in South Carolina for at least one year, that party can file for divorce in South Carolina even if the other spouse has never set foot in this state.
Other issues such as the division of property, alimony, visitation, and child support, however, require obtaining personal jurisdiction over the nonresident spouse. Obviously, jurisdiction questions are intricate; to avoid having his or her case dismissed due to a failure to adequately satisfy jurisdiction, please seek the advice of qualified counsel such as the attorneys at The LaMantia Law Firm.
Where do I file for divorce?
In South Carolina, the Family Court has exclusive jurisdiction over actions for divorce. Each of the 46 counties in the Palmetto State has a Family Court. Actions for divorce are tried in the county where the Defendant resides at the commencement of the action, or the county where the parties last resided together as husband and wife. If the Defendant is not a South Carolina resident, then the action is tried in the county where the Plaintiff resides.
Does fault play a role in the divorce?
The court may consider fault by either party when determining alimony, separate support and maintenance, and the equitable distribution of property.
In South Carolina, adultery by the party who would otherwise receive alimony is a complete bar to the receipt of alimony except under certain circumstances. Given the severe ramifications fault has in the divorce process, please consult an experienced divorce attorney who can answer your questions and address your concerns.
How long does it take to finalize a divorce? How fast can I obtain a divorce?
While each case is different, there are a few general rules to consider. Unless the Plaintiff seeks a divorce on the ground of one year's continuous separation, any request for a divorce on a fault ground cannot take place at a hearing until two months after the Summons and Complaint is filed. The actual divorce, though, cannot be granted until three months have passed since the case was filed.
With the no-fault divorce on the ground of one year's separation, the Plaintiff may file the action one year and one day after the year of continuous separation passes. Then, a hearing and divorce are possible either thirty days after service upon the Defendant, or if the Defendant files an answer before the thirty days, one could immediately request a hearing.
Whether filing on fault or no-fault grounds, for a divorce to become final a Family Court judge must sign the Decree, and the Decree must be filed with the Clerk of the Family Court.
Should I leave the marital home? Could this negatively impact my case?
Whether or not a spouse should leave the marital home and whether there would be any detrimental consequences of doing so truly depends on the individual circumstances of each case.
The choice to move out of the marital home does not forfeit a spouse's right to an equitable division of marital property. However, if you move out and want to move back in, the potential for complications arise. For that reason, this is a question best asked of the talented and experienced attorneys at The LaMantia Law Firm.
How will property be divided? Does my spouse automatically get half of our marital assets and debts?
South Carolina Family Court has jurisdiction to equitably divide the parties' marital property. There is no preset rule regarding the division of assets. Instead, the Courts consider a variety of factors set out in South Carolina statutes, including:
- Duration of the marriage.
- Separate maintenance and/or alimony award.
- Child custody arrangements; physical and emotional health of each spouse.
- Financial/economic circumstances of each spouse.
- Vested retirement benefits of each spouse.
- Need for additional training or education to achieve spouse's income potential.
- Liens or encumbrances on marital and separate property/debts; non-marital property of each spouse.
- Tax aspects of divorce.
- Support being paid or received by either spouse regarding a prior marriage or child.
- Desirability of retaining the marital home.
- Each spouse's contribution to the marriage.
- Fault or marital misconduct of either party.
- Any other factors necessary to achieve equity.
What is the difference between marital and non-marital property?
On a very basic and general level, non-marital property is usually considered any asset owned prior to the marriage, inherited by a party during the marriage, or given by a third party as a gift during the marriage. Marital property includes all real and personal property acquired by the parties during the marriage, gifts between spouses given during the marriage, and vested and non-vested benefits or funds accrued during the marriage such as retirement accounts, pensions, and real property.
There are, however, many exceptions and nuances to this list, and there are situations where non-marital property can transform into marital property. To adequately protect your interests, we recommend that you consult with an experienced family law attorney who can give you sound legal advice on this topic, tailored specifically to your own situation.
What is alimony? How is it different from separate support and maintenance?
Alimony is post-divorce support payments made by one former spouse to another former spouse. There are five types of alimony:
- Lump sum
Alimony can be modifiable (it can be changed later based on a change of financial circumstances of either party) or non-modifiable (cannot be changed.)
Separate maintenance and support refers to pre-divorce support payments made by one spouse to another spouse.
While either the Plaintiff or Defendant may be eligible for alimony, fault by either party is considered by the court when determining the alimony amount. It is important to note that if one spouse can prove the other spouse has committed adultery the recipient spouse can be barred from receiving alimony or separate maintenance and support except under certain situations.
(Talk to an experienced attorney to learn more about this important aspect of divorce cases.)
In South Carolina, the courts consider the following factors when awarding alimony:
What happens after I become a client?
Each family law case represents a unique and highly individualized situation. At the initial consultation, our lawyers will discuss with you the many avenues a potential client could pursue so all actions are tailored to the party's particular situation.
Can my spouse and I use the same attorney?
No. Every divorce, regardless of how amicable, is inherently adversarial. For that reason, South Carolina's Model Rules of Professional Conduct does not permit one lawyer to represent both parties.
One exception does apply, though. This statement does not apply to instances where parties hire an attorney to act as their mediator. In that case, the mediator cannot represent or give either party legal advice, but the mediator can help the parties reach a mediated agreement that they can later use as a Settlement Agreement that the Court can approve and make an Order of the Court.
What is the difference between mediation and arbitration?
Mediation is a negotiation tool in which the parties agree to present all or select issues in dispute before a third-party neutral, called the mediator. The mediator works with the parties and assists them in settling their issues, but mediators cannot advise either party or make a decision for them. Further, the parties are not bound by the mediated agreement. In addition, there is no requirement that the mediator reach a certain result, thus, it is possible that the parties may settle all of their issues, some of their issues, or none of their issues. Mediators are generally experienced Family Law attorneys or financial experts that are trained and skilled in the mediation process.
In arbitration, the parties agree to submit their issue or issues to one or more third-party neutral parties, called an arbitrator. The arbitrator will listen to each party's side of the case and then, acting as if he or she is a judge, the arbitrator will issue a binding decision called an arbitration award. Unlike mediation, an arbitration award is final and may only be appealed in extremely limited situations.
Child Support, Custody & Visitation
What factors may the Court consider when awarding custody?
The paramount consideration the Court looks to in all child custody controversies is the best interests of the child. There are a variety of other factors the court may consider when awarding custody such as:
- Religious faith.
- Child's reasonable preference, when appropriate.
- Domestic violence issues.
- The character, fitness, attitude and inclination on the part of each parent as he or she impacts the children.
- Who has been the child's primary caregiver.
- Immoral conduct by a party that would be detrimental to the welfare of the child.
- The psychological, physical, environmental, educational, medical, family, emotional, and recreation aspects of each child's life.
- Any written agreement between the parties.
Given the complexity of and the unique nature of each case, we highly recommend that you consult with a knowledgeable and experienced family law attorney when dealing with such an action, such as the attorneys here at The LaMantia Law Firm.
What types of custody arrangements exist in South Carolina?
South Carolina Family Courts can award parents, and in some cases non-parents, either sole, joint or shared custody of a child. On the reverse end of the spectrum, the Family Court also has jurisdiction to terminate a parent's parental rights. Many factors affect the custody award, all of which you should discuss with an experienced Family Court attorney.
What factors does the Court consider when establishing child support?
In South Carolina, child support is governed by the Child Support Guidelines promulgated by the South Carolina's Department of Social Services. In rare circumstances, the court can deviate from these guidelines.
Please refer to the Child Support Calculator to calculate your child support amount. While the Child Support Calculator may provide some basic guidance as to what to expect, one should consult with one of our experienced attorneys to understand the totality of the circumstances involved in calculating support for your children. The calculator should only be used as a guideline, not a substitute for the advice for skilled counsel.
Is it possible for a father to get custody?
Yes. The paramount consideration in all child custody controversies is the best interests of the child. South Carolina has abolished the “Tender Years Doctrine," which gave mothers preferential treatement when awarding custody of young children. South Carolina now recognizes the invaluable contribution of fathers to their child's well-being.
Divorce shows most people at their worst, but our goal at the LaMantia Law Firm is to make the process one that heals people and makes them stronger and happier over time. We work hard to help our clients find stability and normalcy, so that you and your spouse can move on to happier times in your life.
If you are currently going through a divorce, one concern is whether you will be financially secure once the divorce is final. Whether you expect to pay alimony or receive it, it is important to have an experienced and qualified divorce attorney protect your interests and advocate for a fair result. We are prepared to do just that.
Child Custody / Visitation
When parents are in the midst of legal proceedings, they are concerned for their child's health, safety and emotional wellbeing. That worry is part of being a parent, but the LaMantia Law Firm carefully considers the best interest of your child(ren) in proposing the child custody and visitation plan best suited to your family's situation.
Dividing money, debts and everything in your home can be one of the most contentious and emotionally charged aspects of divorce. At the LaMantia Law Firm, property division and settlements are a big part of what we do. We understand the stress of dividing marital assets and our thoughtful approach helps clients through this difficult process.
Military service can unfortunately be hard on marriages, and service members sometimes return home to a changed family dynamic. Our team at LaMantia Law Firm is tremendously grateful for those who serve our country and have experience working with members of the military toward objectives that create a happier home life.