Divorce laws can be complicated, so you won’t want to make any assumptions about how your divorce will proceed. Instead, you should consult with a Greenville divorce lawyer that can help you through this process. Hernandez & Cabra can offer you the assistance that you need. We are experienced in handling family law cases and give each client personal attention. Call us at 864-501-4384 today to schedule a consultation.
What Are the Grounds for Divorce in South Carolina?
In South Carolina, couples have the option of filing a fault or a no-fault divorce. In order to file a fault divorce, it must be determined that one or more parties meet South Carolina’s grounds for a fault divorce. The grounds for divorce are:
It isn’t necessary to prove that a spouse engaged in adultery in order to file for divorce on these grounds. Instead, it must be shown that the spouse had both inclination and opportunity to commit adultery. If the court agrees that a party committed adultery, they are ineligible to receive alimony.
In order to establish inclination, you must show that the spouse pursued romantic relationships outside of marriage. As an example, you could show that the spouse sent romantic messages to another person or that they made an online dating account.
To establish opportunity, it’s necessary to show that the spouse had chances to act on that inclination. This could be shown that the spouse spent time at a romantic interest’s house or that they visited a hotel room together.
Habitual Abuse of Alcohol or Narcotics
To establish these grounds, it must be shown that the spouse regularly abused drugs or alcohol and that that abuse lead to the breakdown of the marriage. This could be demonstrated by showing that the spouse had an impaired driving conviction or that they spent household money on drugs or alcohol.
To establish physical cruelty, it’s necessary to show that a spouse engaged in behavior that put their partner at risk of death or bodily harm. South Carolina courts do not require that the abuse be ongoing. A single case of assault can provide sufficient evidence for a fault divorce. However, courts require that the spouse claiming abuse provides a preponderance of evidence to prove their claim.
Abandonment or Desertion
To file for divorce on these grounds, a spouse must have abandoned their partner for at least one year. It must be shown that the spouse left without consent. Filing a fault divorce on these grounds is very rare. Leaving the marital home is not grounds for abandonment if the spouse had justification for leaving.
What is a No-Fault Divorce?
In a no-fault divorce, neither party is assigned fault for the breakdown of the marriage. Because of this, it is not necessary to provide evidence to the court that establishes grounds for a fault divorce. Although South Carolina recognizes no-fault divorces, couples must meet specific criteria in order to file for divorce on these grounds.
Couples cannot file for a no-fault divorce unless they have lived apart for one full year. The courts do not permit any cohabitation. Spouses cannot simply sleep in different rooms. They must show that they have lived in different properties for one year or more.
What is the Difference Between Legal and Physical Custody?
If a divorcing couple shares children, the couple must decide how they will share the responsibilities for their children. While parents can come to an agreement on their own, a judge will assign custody if parents are unable to agree to a custody arrangement. Judges make custody arrangements based on the best interests of the child.
A custody arrangement will specify both physical and legal custody. Physical custody determines where the child will live. Parents with primary physical custody are legally responsible for providing basic care for the child.
Legal custody refers to a parent’s right to make decisions on behalf of their child. This may include medical, educational, and religious decisions. It’s possible for a parent to have legal custody even if they do not have physical custody.
South Carolina allows parents to share both legal and physical custody of a child. If parents have joint custody, both parents must see their child frequently, and both parents have the same amount of input in how the child is brought up.
How is Child Support Determined?
In South Carolina, child support is decided based on specific guidelines. Factors that the family court takes into account when determining child support include:
- The gross income of both parents
- Additional income from self-employment
- Potential income
- Other obligations for child support or alimony
- The number of children in the household
- Childcare expenses
- Healthcare expenses
A child support order can be increased or decreased if one or both parties have a significant change in circumstances. It’s necessary to file an action in order to modify a child support order. While it’s possible for changes in a child support order to be applied retroactively, these changes will only apply from the date the action is filed and onward.
How Will Property Be Split in the Divorce?
Because South Carolina does not have community property laws, the property will not necessarily be divided equally between the two spouses. Instead, courts will divide marital property in a way that is fair and equitable. While this could result in an equal distribution of marital assets, it could also result in one party receiving more than the other.
Because South Carolina’s property division laws are complex, couples may find that it is in their best interest to come to a mutual agreement on how they want to split property. Spouses can work with their attorneys to negotiate a settlement that’s fair to both parties.
What is Equitable Division and How Does it Work?
In “equitable division” states like South Carolina, the property is divided between both parties in a way that’s fair and impartial. Courts will look at a range of factors when deciding how to split property, including:
- Income and earning capacity of both spouses
- Child custody and support
- Marital misconduct
- Prenuptial agreements
- Tax implications
- The length of the marriage
If a divorcing couple cannot agree on how property should be divided, both spouses will have the opportunity to make arguments before the court. The judge overseeing the case will decide how to divide marital property.
What Happens to the House?
Who gets the house in a South Carolina divorce can vary based on the specifics of the case. Equitable division applies to all marital assets, including the family home. Both spouses can reach an agreement on what happens to the home in the divorce settlement, but if an agreement is not reached, a judge will decide what happens to the house.
If one spouse wants to keep the house and the other does not, that spouse could buy the other spouse out of the home. The other spouse would need to be removed from the mortgage, which means that the spouse keeping the home would have to qualify for a mortgage on their own.
If neither spouse wants to keep the house, the couple can sell the house and divide the proceeds. Before selling a home, the spouses should create a written agreement that specifies the terms and conditions of the sale. This agreement can be drawn up by lawyers when a settlement is being reached.
If both spouses want to keep the house, and they are not able to reach an agreement, the courts may choose to list the house for sale or award one party the house while awarding the other spouse other assets. Judges have a great deal of discretion when deciding how to award property, which is why a divorce settlement is often the best option for both parties.
How Long Will a Divorce Take?
The length of time it takes to get divorced in South Carolina can vary based on the grounds for divorce and whether the divorce is contested. Couples must wait a minimum of 90 days for a fault-based divorce, and spouses must live separately for a continuous period of one year in order to receive a no-fault divorce.
If both parties are able to come to an agreement on child custody and support, division of assets, and alimony, the divorce is considered to be uncontested. If all issues have been settled, a final divorce hearing will usually be granted within 60 to 90 days of filing. It could take longer to resolve a divorce if there are a significant number of cases on the docket.
Contested divorces can significantly increase the amount of time it takes to resolve a divorce case. When a case is heard by a judge, there is a discovery process in which both parties can request information that is relevant to the case. Contested divorces are generally more costly for both spouses and take much longer to resolve.
How Much Will a Divorce Lawyer Cost?
The cost of a divorce can vary based on the attorney’s hourly rate and the amount of time the divorce takes to resolve. Contested divorce typically takes longer, which leads to higher costs. In the case of fault divorce, however, one spouse may be ordered to cover the other spouse’s legal fees.
Speak With a Greenville Divorce Lawyer at Hernandez & Cabra
If you’re considering a divorce, you’ll want to meet with an experienced Greenville divorce lawyer so that you can get the information you need. Consulting with a lawyer will provide you with answers to your questions so that you can make an informed decision about how to proceed. Contact Hernandez & Cabra today at 864-501-4384 to learn more about your options.