How Will Divorce Affect Me in South Carolina?
Full Question:
Answer:
To begin divorce proceedings, a complaint for divorce is filed in the local family court. The petition for divorce must be filed in the county in which the defendant resides at the time of filing, or where the plaintiff resides if the defendant is a non-resident or cannot be found. The petition may also be filed in the county where the parties last shared a residence, unless the plaintiff is a non-resident, in which case it must be filed in the county where the defendant resides.
There are two types of divorce-- fault and no-fault. A fault divorce, is a judicial termination of a marriage based on marital misconduct or other statutory cause requiring proof in a court of law by the divorcing party that the divorcee had done one of several enumerated things as sufficient grounds for the divorce. Some jurisdictions authorize no-fault divorces, based on incompatibility, such as irreconcilable differences. The consequences of no-fault divorces vary from state to state. No-fault divorce eliminates this potentially embarrassing and adversarial requirement of stating others grounds by providing for the dissolution of a marriage on a finding that the relationship is no longer viable. Some states still require at least a minimal showing of fault, but no-fault divorce is now the rule in which "incompatibility" is sufficient to grant a divorce.
South Carolina law permits no-fault divorces based upon living separate and apart without cohabitation for at least one year. Additional grounds include; adultery, desertion, physical cruelty and addiction to drugs or alcohol. It is not necessary for both spouses to consent to filing a divorce petition. A divorce petition may be filed by only one spouse, and if the other spouse doesn't file an answer to the divorce complaint, it is still possible to be granted a default divorce decree.
The courts may award alimony to either spouse. Alimony may be periodic, lump sum, rehabilitative or reimbursement type. Adultery is considered by the court when making a determination as to whether alimony should be granted. Factors the court considers in determining the amount and term of alimony include:
1. The duration of the marriage and the age of the parties.
2. The physical and emotional condition of the parties.
3. The educational background of the parties along with the need of each for additional training or education.
4. The employment history and earning potential of each spouse.
5. The standard of living established during the marriage.
6. The current and reasonably anticipated expenses and needs of each spouse.
7. The current and reasonably anticipated earnings of each spouse.
8. The marital and non marital properties of each spouse.
9. Custody of the children.
10. Marital misconduct; and
11. Any other relevant factors.
South Carolina is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. Some of the factors the court considers in dividing the property between the parties include:
1. The duration of the marriage.
2. The age of the spouses.
3. Marital misconduct.
4. Economic misconduct.
5. The value of each party's marital property.
6. The contribution of each spouse to the marital estate.
7. The income of each spouse.
The following is a SC statute:
§ 20-3-10. Grounds for divorce.
No divorce from the bonds of matrimony shall be granted except upon one
or more of the following grounds, to wit:
(1) Adultery;
(2) Desertion for a period of one year;
(3) Physical cruelty;
(4) Habitual drunkenness; provided, that this ground shall be construed
to include habitual drunkenness caused by the use of any narcotic drug;
or
(5) On the application of either party if and when the husband and wife
have lived separate and apart without cohabitation for a period of one
year. A plea of res judicata or of recrimination with respect to any
other provision of this section shall not be a bar to either party
obtaining a divorce on this ground.
