Since our inception, Hernandez & Cabra has focused on matters regarding family law. We know that family issues are often life-changing, and they require diligent attention to detail, along with zealous advocacy and personalized representation. Our combined decades of legal experience allow us to deliver insightful counsel and aggressive representation when needed.
Whether you are looking for legal assistance with complex marital litigation, adoption, or drafting a premarital agreement, we provide all our clients with supportive advocacy when navigating family court. Our Greenville law firm can be your devoted representative, and we will be by your side every step of the way.
Reach out to our experienced Greenville family law attorneys online or via phone at 864-501-4384 to schedule your appointment with one of us. We are always available, even at odd hours and on weekends to ensure client convenience.
What Qualifies as a Family Law Case?
Family law cases are civil cases that involve family problems affecting parents, spouses, and children. Here are some of the most common family law cases in South Carolina:
Divorce can be a complex process, but you don’t have to go through it alone. Our team of Greenville family law attorneys will take the time to get to know your case and unique needs. While it might seem preferable for both partners to seek resolution in an uncontested manner, most divorces that enter the South Carolina family court system are contested divorces. The couple might be disagreeing on issues such as division of property, child custody, and whether or not alimony should be paid.
If you and your spouse agree over much of the issues involved, your divorce is considered uncontested. If you believe that you can come up with a plan about property division, child custody, and other issues without major disputes, then an uncontested divorce will likely be a great option to pursue.
However, just because it’s an uncontested divorce doesn’t mean that legal counsel isn’t necessary during the process. Having an experienced representative is vital, whether it’s a contested or uncontested divorce. Our Greenville family law attorneys can help you strategize on how to handle the marital home, how to prepare for the tax consequences, how to design a fair parenting schedule, and much more. This should help ensure a favorable outcome for you.
Parental Rights, Child Custody, and Child Support
When a child is born to a married couple, both parents are given full custody rights unless a family court rules otherwise. The father and the mother are joint guardians of the child, and they equally share responsibility for the welfare and education of the child. Neither parent has rights that supersede the other.
We approach all child support and child custody disputes with great sensitivity and understanding. From our years of experience in family law, our lawyers are well aware of what to expect in these situations and we are always ready to support our clients.
Spousal Support and Alimony Agreements
Alimony, also referred to as spousal support, is a support payment usually done by one of the spouses to another following a divorce. Alimony is a major part of divorce proceedings and is designed to help an individual whose spouse has significantly more income.
At Hernandez & Cabra, we understand the nature of alimony discussions. We know that alimony and spousal support can have a huge impact on divorce settlements, and you need to have personalized and forthright guidance throughout the process to ensure a favorable outcome.
Legal Name Changes
If you want to pursue a legal name change for you or your child, we can help facilitate just that. In South Carolina, you need to file a formal petition with the family court to obtain a legal name change. The culmination of the process will have the court issue an order that authorizes the amendment of documents such as your driver’s license, birth certificate, and any other identifying documentation.
Altercations between family members will sometimes require legal intervention to keep both parties civil. A restraining order against a spouse, a family member, or a person with whom you have a legitimate relationship is referred to as an Order of Protection. Based on the severity of the case, the judge might issue an order of protection to prohibit the accused from communicating with you or anyone involved for no less than 6 months.
If you experience any sort of stalking or harassment from a non-family member, you can also file for a restraining order from the Magistrate’s Court. Prior police documentation of instances where the accused has stalked or harassed you will be required for this kind of restraining order.
DSS Cases & Adoption
If you have been reported to the DSS (Department of Social Services), you should do your best to stay calm. These kinds of scenarios play out in a number of ways, though one of the best things you could do is reach out to an experienced family law advocate in Greenville, South Carolina. Being charged with neglect and/or child abuse could jeopardize your career, relationships, housing, etc., and you shouldn’t handle this on your own. Get a tenacious family lawyer to help ensure a favorable outcome.
Our family law attorneys can also help you adopt a child through a private agency or through foster care.
What Are the Grounds for Divorce in South Carolina?
South Carolina laws on the ground for divorce are quite unambiguous. The following are the five grounds for divorce under South Carolina laws:
This is defined as actual physical violence that endangers a person’s life or health, rendering the continued cohabitation unsafe. The court will require proof of more than one act of violence unless in cases where the act is too severe. It’s worth noting that emotional and mental abuses aren’t grounds for divorce in South Carolina.
This is defined as sexual intimacy with any other person other than your spouse. It requires that you show evidence of romantic inclination and the opportunity to commit sexual activity. This will typically be proven by evidence such as what would be collected by a private investigator. Note that both heterosexual and same-sex affairs are considered adultery.
One Year Separation
This requires that both parties have lived in separate residences for 365 days or more. The court typically doesn’t consider sleeping in different rooms in the same house as separation. The physical separation should also be corroborated by a third party during the divorce hearing.
This is when one of the spouses engages in routine or regular consumption of a substance to the point of intoxication. This may include alcohol, illegal substances, or excessive use of legal drugs. Habitual drunkenness is often proven by a third party who should have reasonably observed the drunkenness and the resulting behavior.
This is defined as the married couple not living together for one year or longer, a general lack of intent to continue cohabitation, and lack of consent from one spouse to the separation, along with lack of justification for the cessation of the cohabitation. In modern divorces, this cause for divorce is rarely used.
How Do You Start the Divorce Process?
Before you start the divorce process in South Carolina, you have to meet the following criteria:
- If you as the plaintiff are a South Carolina resident, you must have lived in the state for at least one year before you file your divorce.
- If you as the plaintiff are a non-resident of South Caroline, your spouse (the defendant) must have been living in the state for at least one year.
- If you and your spouse are South Carolina residents when the divorce process is starting, you must have lived in the state for 3 months before the divorce action starts.
Divorce processes in South Carolina start when either you or your spouse files a Complaint and Summons in the family court. Your lawyer will prepare these documents on your behalf and present them to the court.
Once this is filed, it should then be served to your spouse. The summons essentially informs the defendant that you, the plaintiff, has brought a divorce action, and they must accept and answer the Complaint for Divorce.
When the papers have been served to the defendant, they must file an answer to the Complaint for Divorce. The response or answer will give them an opportunity to state any defenses or complaints they may have with regards to the claims made in the Complaint.
If both parties can reach a mutual agreement, they can proceed to sign a Settlement Agreement that outlines how the debts, assets, property, and liabilities are going to be divided. A Divorce Agreement could also settle matters related to child support, visitation, and custody.
In case the parties can agree on a settlement, they will have to go through litigation, which is often complicated and time-consuming. It’s critical to consider hiring a divorce attorney at this stage to help with the case.
How Does the Division of Property Work in South Carolina?
Property division is among the hardest elements in Family Court. Based on the circumstances surrounding your divorce case, you could potentially lose or gain a considerable amount of property, real estate, and other assets.
For South Carolina, the family court can divide marital assets as part of separate maintenance or divorce action. Courts mainly use the equitable distribution principle to appropriate property based on what is fair while taking into account several factors. It’s important that you involve a lawyer as early as possible in your case to ensure your best interests are fully protected.
The family court will follow a four-step process when dividing property in a divorce case:
- Identify all of the marital property, assets, and debts that will be divided between the parties
- Establish the fair market value of the assets as well as the amount owed for the identified debts
- Find out the proportional contributions of each spouse, whether direct or indirect
- Provide an equitable division of the marital property
How Is Child Custody Decided?
If you are disputing child custody in your divorce case, you will likely hear the phrase “the best interest of the child” said time and again. This is because it’s a legal phrase that is used to determine various aspects affecting the child in family courts. Generally, the phrase means whatever is in the best interest of the child, in terms of their safety, happiness, mental health, and emotional development.
The court must consider the best interest of the child according to the factors outlined by the South Carolina law. These include:
- The child’s developmental needs
- The preference of the child
- The ability of each parent to understand the child’s needs
- The parents’ wishes with regards to custody
- The existing relationships between the child and each parent, siblings, family members, and other people in the household
- How involved each parent is in the child’s life
- Whether each parent involves the child in their disputes
- Whether each parent encourages the child’s engagement with the other parent
- Whether either parent disparages the other in front of the child
- Whether the child was in any way neglected or abused
- Whether the child has already adjusted to their home and community life, including schools, etc.
- The physical and mental health of each parent
- The child’s spiritual and religious background
- Whether either parent has committed domestic violence
- Whether any parent has moved to a location more than 100 miles away in the past year
- And any other factor the court deems relevant
Previously, the law was biased towards the mothers in child custody cases. However, this is not the case anymore. In fact, South Carolina Law explicitly bars the family court from considering the gender of the parent when making judgments in child custody cases.
So, if the court thinks that it’s in the best interest of the child to live with their father full-time, the dad will get full physical custody. If the court thinks the mother serves the best interests of the child better in terms of making sound decisions about their education or health, then the mother will get legal custody.
What Is Alimony and How Is It Decided?
The court might consider awarding alimony in a divorce case so that the more financially secure party pays alimony to the less advantaged spouse. courts will consider lots of factors when making the decisions whether alimony should be awarded or not, along with how much alimony should be awarded.
These factors include the current incomes of both parties, the age of the parties, the current health of both, the ability to earn income, and each party’s work history. The process to determine alimony is quite subjective and there’s no specific formula in place to calculate alimony.
The law lists some of the factors that the court should consider when deciding whether or not to award alimony. These include:
- Length of the marriage – a person is more likely to get alimony if the couple was married for 30 years compared to if you were only married for a year or two
- The earning capacity of each party along with their education level
- The emotional and physical health of each party
- The couple’s standard of living during the time they were married
- The amount of property and assets each spouse owns
- The current and expected future earnings, needs, and expenses
- Whether the income potential of one spouse would be limited because of child custody
- Marital misconduct
- Other factors the court deems relevant
In case your former spouse doesn’t make their alimony payments as instructed by the family court, contact your lawyer immediately. We can file a Rule to Show Sause and ask the court to enforce the alimony order and hold your ex in contempt of court when they refuse to pay.
On the other hand, if you were asked to pay alimony and you are unable to make payments because of a change in circumstances, we might be able to ask the court to modify the original court order and change the amount of alimony you’re required to pay, either as a response to a Rule to Show Cause or before you start falling behind on your payments.
Call Our Greenville Family Law Attorneys Today
When facing a sensitive family matter like divorce, adoption, spousal support or alimony, or child custody disputes, it’s always important to have an experienced lawyer by your side. A good lawyer will provide you with the proper guidance and counsel to ensure a favorable outcome while treating the matter with the compassion and professionalism it deserves.
The family law advocates at Hernandez & Cabra in Greenville, South Carolina pride themselves on delivering insightful advice and accurate information to every family that comes to us facing a delicate or difficult family situation. We have helped countless individuals and families in a situation similar to yours, and we are sure we can help.
We will take our time to review your circumstances and help you strategize on a clear roadmap so that you can resolve the issue swiftly and favorably and minimize any additional complications. Get in touch with our office at 864-501-4384 to schedule a consultation with us today. We want you to move on to the next chapter of your life confidently.