Q: How long do I have to live here before I can get divorced here?
A: If both you and your spouse live in South Carolina, you must be residents of this state for at least three (3) months before you can file for a divorce here. If only one of you reside in South Carolina, you must be a resident of this state for at least a year before you can file for divorce here. If you last lived together in another state and you move here and reside here for a year, you may file for a divorce in this state; however, the Family Court may not have the authority to decide all of the issues related to your divorce, such as property division or alimony.
Q: How long do I have to be separated from my spouse before I can get divorced?
A: If you do not have fault grounds against your spouse such as adultery, physical cruelty, or habitual drug/alcohol abuse, your divorce will be granted on the ground of one year's continuous separation. If you have fault grounds, the time may be shortened; however the Court will not grant the divorce, even on fault grounds, until you and your spouse have resolved all other issues such as custody, child support, property division, etc. This may cause your divorce action to take much longer than what the law may permit.
Q: Do I have to go to Court for a legal separation before I get divorced?
A: Not necessarily. If you do not have any issues that need to be addressed by the Court during your separation period, you can wait until the year is up and then file for a divorce. You will need to bring a corroborating witness with you to Court, someone who knows that you and your spouse have been separated for a year. If you are unable to resolve issues involving child custody, support, or visitation, during your separation period, you may request a hearing and ask the Court to address these issues.
Q: How does the Court determine who is awarded custody of your children?
A: Custody of your children will be determined based on what the Court believes to be in your children's best interests. This is determined based on the facts of each individual case. There is no longer a preference for children to be placed with their mothers, even in cases involving very young children, and often the Court will award custody of the children to a fit and loving father. In any contested custody matter, a Guardian ad Litem will be appointed to represent your children's interests during your divorce action. The Guardian will speak to you, your spouse, and possibly your children, as well as any other involved parties. The Guardian may also visit your home. When the Guardian's investigation is completed, s/he will appear in Court and make recommendations regarding your children's best interests.
Q: How is child support calculated?
A: Child support is calculated using both parents' gross income, the cost of health insurance (if any) and the cost of day care (if any). Each parent is given a credit for other support obligations and other biological children living in their homes. The income of either parent's current spouse is not included in computing child support. If either parent is voluntarily unemployed or working below their potential, the Court may impute income to that parent for purposes of computing child support.
Q: How will our property be divided between me and my spouse?
A: The division of marital property is determined by numerous factors set forth in the Equitable Apportionment of Marital Property Act contained within the South Carolina Code of Laws. The longer the marriage, the greater the likelihood that your property will be divided equally between you and your spouse. If there is marital misconduct such as adultery, physical cruelty, or habitual drug use, this may affect how the Court divides your property; however, no single factor will be used as a basis for dividing property.
Q: How much will my divorce cost me?
A: Any time a potential client asks this question, the answer is always "it depends." Normally, an attorney cannot estimate the cost until s/he has met with the client and gained a clearer understanding of the issues involved in their case and the amount of time that might be devoted to each individual case. After meeting with a potential client, your attorney will quote a retainer fee, which is essentially a substantial down payment toward the total cost of your divorce case, but generally will not cover the total cost of your case. Your attorney should send you an itemized monthly statement showing the work performed on your case, the time spent on each task, and the fee for the service. This allows each client to budget for additional work that must be done on their case after the initial retainer fee is exhausted. Some types of cases, such as uncontested divorces, are handled on a flat-fee basis, in which case you will not receive a monthly invoice.