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 an initial consultation during which we may address your case-specific questions. We also invite you to read our Frequently Asked Questions below to get you started down the path to answers.
Courts in South Carolina recognizes four “fault” grounds for divorce:
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.
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.
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.
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.
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.
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:
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.
Alimony is post-divorce support payments made by one former spouse to another former spouse. There are five types of alimony:
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:
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.
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.
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.
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:
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.
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.
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.
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.