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Family Law

DOES SOUTH CAROLINA RECOGNIZE LEGAL SEPARATION

The short answer is No. Now this does not mean that you can't separate from your spouse. If circumstances demand it, of course you can separate from your spouse and begin the process of obtaining a divorce. You may be asking yourself, “If I separate from my spouse, what am I supposed to do” . . . Well that thought will lead you into the next question . . .

DO I NEED A LAYWER IF IM SEPARATING FROM MY SPOUSE

Yes you do! You may file an action for Separate Support and Maintenance. Though South Carolina does not recognize a “legal separation,” the action for Separate Support and Maintenance allows a Husband and Wife to get in front of the Family Court to have their legal responsibilities established by the Family Court during the period of separation. This action will establish the terms of child custody and child support, visitation, spousal support, use of the marital home, and other issues that need an immediate response. After separation, the couple can also negotiate and agree to a settlement that addresses the relevant issues listed above and apply to the Court to have the agreement approved while waiting for the one year separation period to run.

DO I NEED A LAWYER FOR AN UNCONTESTED DIVORCE

It is vital to have a lawyer in an uncontested divorce. First of all, many otherwise “uncontested” divorces end up walking and talking a lot like a “contested” divorce once all the relevant issues are addressed, like support, custody, visitation, and property division. Having a lawyer involved from the outset brings two vital elements into the fold that insure a success divorce action. The lawyer knows the procedure, knows the law, knows the deadlines, the ins and outs of the practice, and eliminates many of the hiccups self-filers run into that are fatal to a case. In addition, the introduction of a lawyer adds a third-party perspective that aids in the mediation and establishment of agreement that produces a less emotionally charged and more efficient journey through the Family Court system.

HOW LONG DOES IT TAKE TO GET A DIVORCE IN SOUTH CAROLINA

Well . . . It depends. If you are seeking a no-fault divorce (in South Carolina, that means one year separation), the Court would not grant a final order of divorce until that year has expired. That doesn't mean the process can't be initiated before the year has run, but only that the final divorce can't be granted by the Family Court until the one year is up. If you are seeking a divorce on a fault-based ground (adultery, physical cruelty, habitual drunkenness, desertion) the final divorce can be granted usually about 90 days after the filing. Of course, if issues arise during the proceedings this would extend this timeline out while the Court considers the arguments of both parties on these issues.

CAN I FILE FOR DIVORCE IF MY SPOUSE AND I STILL LIVE TOGETHER

The technical answer to this question is yes. The divorce would have to be based on one of the fault based grounds (adultery, physical cruelty, habitual drunkenness, desertion). Now as a practical matter, filing a divorce against a spouse with whom you still share a residence with is not the best idea as far as the emotions involved and the potential for mental and physical confrontation. I would definitely advise that the party seeking the divorce create the necessary distance with the other spouse so as to avoid confrontations that can get out of hand.

WHAT IS CONSIDERED ADULTERY IN SOUTH CAROLINA HOW DO I PROVE ADULTERY

Adultery is defined by South Carolina law as “illicit intercourse between two persons, one of who, at least, is married.” Sounds like you have to catch your spouse in the act, right? Well the answer is no you don't. Proving adultery in a South Carolina Family Court only requires proof of “the inclination and opportunity to commit adultery.” The opportunity of sexual intimacy can be proven by the party alleging adultery in a multitude of ways that don't require the grainy video of your spouse and their lover in the bedroom. The person alleging adultery does have the burden of proving adultery and the court considers adultery on a case by case basis.

DO YOU DO MILITARY DIVORCES

In essence, military divorces are governed mostly by the same rules as civilian divorces. Military divorces take place in South Carolina Family Courts and are for the most part governed by state law. Yes, there are federal laws that establish the rules on service of court documents on deployed military personnel and how military retirement pay is to be distributed in a divorce. Though a small part of the total process, these federal rules that interject into divorce proceedings are very specific, very time sensitive, and you will need a family law attorney to navigate this process.

HOW IS CHILD SUPPORT CALCULATED IN SOUTH CAROLINA

Child Support in South Carolina is determined by the South Carolina Child Support Guidelines. In its purest form, the Child Support Guidelines establish a formula that takes into consideration each parent's gross income, the cost of work related child care, the total number of children in the home, the cost of medical insurance for the children, and any extraordinary expenses for the children, among other factors. The Family Court does retain discretion to deviate from the Child Support Guidelines under special circumstances. Child support is also affected by the time the child / children spend in the home of each respective parent.

WHAT IS STANDARD VISITATION IN SOUTH CAROLINA FAMILY COURT

This standard may be interpreted differently from judge to judge, to be quite honest. However, we do have a pretty good idea of what standard visitation means in South Carolina. In most cases, standard visitation for the non-custodial parent will be every other weekend, 4 weeks during the summer, and alternating holidays. A more current trend in visitation orders from family court judges in South Carolina has allowed the non-custodial parent “dinner visits” with the child during the off weeks of visitation. Visitation, if not agreed upon, is within the Family Court's discretion to establish and it is within the Court's discretion to increase “standard visitation.” I always advise clients that this is one issue that the parties should work diligently to agree upon and establish a visitation schedule to avoid an unforeseen result before the Court.

MY EX-SPOUSE IS NOT PAYING CHILD SUPPORT, WHAT CAN I DO

Absolutely! In South Carolina, the Family Court calls it a “Rule To Show Cause” Hearing. In essence, it is a contempt of court hearing. It is a hearing with the non-paying is brought before the Court to “show cause” on why they can't pay. Without cause being shown, the Court will compel the non-paying parent to pay the past due child support or face penalties from the Court (fines, jail time, pay your attorney fees). A Rule to Show Cause is the instrument by which an existing order is enforced. If you do not have a child support order in place, you can of course initiate an action in Family Court to establish a support order upon a non-paying parent.

The McMillian Law Firm

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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