Divorce is one of the most serious issues in law and affects millions of people each year. A marriage doesn’t simply dissolve with the signing of papers. It may be one of the toughest things you’ll ever face. Don't face it alone.
Divorce law in South Carolina can be complex. We have five grounds for divorce, which include physical cruelty, adultery, habitual drunkenness, abandonment and "no fault." The "no fault'' option requires the parties to live separate and apart for at least one year. Because of this requirement, many divorce actions first involve an action for separate support and maintenance to address issues such as support, child custody and visitation during this one year period.
To begin a divorce action, one party must file the initial Summons and Complaint, which states the grounds on which the divorce is being sought. This document will also make a request as to the division of marital property, alimony and issues related to any minor children born of the marriage (child custody, visitation and child support). Once the Summons and Complaint is filed, the opposing party must be served and has thirty (30) days to respond.
Regardless of the grounds for the divorce, whether you're the plaintiff or defendant and how well you and your spouse are currently getting along, it's not easy nor advisable to navigate the process of divorce alone. In reality, there are no “winners” in a divorce case, but neither party has to be considered a loser or endure the process without representation. Here's how our family court team can help:
We will educate you. From your first consultation, we will give you the information you need to empower you during the process. We make sure you know how the law may impact you and explain what you might expect as far as spousal support (alimony), child support, and property division issues.
We will work hard to resolve issues, not make them worse. It's a sad state of affairs, but there are attorneys known for making matters worse. We don't complicate issues or stir the pot simply to increase our fee. Our goal is to help you move forward with your life, confident in your decisions and our representation. For those client's with children, this is particularly important as you will have to co-parent for the rest of your life. We will make every effort to resolve your case through negotiation or mediation, but if that's not possible, rest assured that we will be prepared to take your case to trial and advocate for your best interest.
We bring our firm's "AAA" promise to every case. Family Court issues can be incredibly stressful on all involved, which is why our firm's promise to be accountable, accessible and astute is incredibly important. The emotional benefit of the right lawyer is immeasurable. Choose wisely.
The ending of a relationship often involves the division of assets and debts accumulated during the marriage. If both spouses cannot reach a property settlement agreement on their own, the court will divide the marital property and debts according to the principle of equitable distribution. A fair division of property requires the following:
Understanding marital versus non-marital property: South Carolina has laws that determine what is and is not considered marital property. Those laws can be changed by a pre-nuptial or post-nuptial agreement executed by the couple involved. As a general rule, marital property includes all property or assets accumulated during the course of a marriage. Despite what many clients have heard (or Googled), this also involves property gained individually, not just as a couple. Marital property generally includes income, houses, cars, pensions, retirement accounts, cash on hand and anything else owned by the couple. Meanwhile, non-marital property is not subject to the divorce litigation and includes any asset or income accumulated by a person before the marriage, which has been solely owned or kept in that person’s name. To complicate matters further, even though property may be considered separate, a court may still consider the increase in value of the separate property to be part of the marital estate.
Understanding factors used by the court: If the court has to divide property, they will consider factors including, but not limited to the length of the marriage, the source of the property, the parties needs, each parties earning ability, the needs of any children and each party's contribution towards the acquisition of the property. In South Carolina, the cause (or fault) of the divorce is also a consideration. As a result of these factors, it's a mistake for couples to assume they will each receive 50% of the marital assets.
Knowing how to handle debt: Just like assets, debts will be designated as either marital or non-marital and are part of the equitable distribution process. Most debts acquired during the marriage will be considered marital debt regardless of whose name they are in. Debt incurred before the marriage is likely separate property. However, there are exceptions to both of these rules.
Property and debt division can be a contentious issue. We have the tools and skills (legal, accounting, property valuation,etc.) to handle everything from complex, high-asset property settlements to cases involving significant debts. You need to know your rights under equitable division if you're considering a divorce. Contact us today for a consult so we can provide you with information specific to your case and empower you to make the best decisions!
When children are involved, negotiations become even more contentious and painful. At Provence Messervy, we believe it's our duty to help clients deal with custody and parental rights issues to reduce the negative impact on the kids caught up in the process. The first step is making good decisions early in the process to avoid later modifications and continued stress. However, we recognize that custody issues don't end when the divorce is final and that circumstances can change, which requires court intervention. We also recognize that non-married couples, grandparents, same sex couples, relocation and remarriage can all complicate custody issues. We're here to help. Here are a few of the most common child custody questions:
How does the judge decide who gets custody? South Carolina law requires the Family Court to determine the “best interests of the child” in any child custody case. Although there is no rule of law requiring that custody be awarded to the primary caretaker, this is often the assumption. It is important to note that in South Carolina, the "Tender Years Doctrine" has been abolished, so it's no longer presumed that a mother will get custody of an infant child.
What constitutes "best interest of the child?" Every judge is different, but South Carolina law does list several factors a judge should consider. Those include:
the temperament and developmental needs of the child;
the capacity and the disposition of the parents to understand and meet the needs of the child;
the preferences of each child;
the wishes of the parents as to custody;
the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person, including a grandparent, who may significantly affect the best interest of the child;
the actions of each parent to encourage the continuing parent child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
any effort by one parent to disparage the other parent in front of the child;
the ability of each parent to be actively involved in the life of the child;
the child’s adjustment to his or her home, school, and community environments;
the stability of the child’s existing and proposed residences;
the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
the child’s cultural and spiritual background;
whether the child or a sibling of the child has been abused or neglected;
whether one parent has perpetrated domestic violence, child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons;
and other factors as the court considers necessary.
Do we have to have a guardian ad litem involved in our case? In most contested child custody cases, the court appoints a guardian ad litem at the first hearing or by agreements of the parties. The guardian will act as the child’s representative and advocates for the best interests of the child in all proceedings. The guardian may investigate various aspects of the child’s life, speak to the parties and their witnesses and might observe the child with each parent and visit each parent’s home. Some guardians are attorneys while others might be social workers or similarly trained individuals.
What's the difference between legal and physical custody? Legal custody deals with the decision making powers for your children. For example, if you have joint legal custody, both parents have equal say in decisions such as which school the child attends, healthcare matters, religious upbringing, etc. If you have sole legal custody, you can make these decisions on your own (although consulting a co-parent is always recommended). Meanwhile, physical custody refers to the person with whom the child is with on a daily basis. This is normally the custodian of the child. A couple with joint physical custody means each parent has significant periods of physical custody (not always 50/50). It's important to note that parents might have joint legal custody without having joint physical custody or vice versa.
Parents always have lots of questions about custody and that's why we're here. Please call us or schedule an appointment online today so we can connect you with an experienced attorney to give you the advice you need.
Opinions on alimony are often based on whether you're the person paying it or receiving it; however, alimony shouldn't be viewed as a reward or a punishment, but rather an attempt by the court to create financial balance between a divorcing couple. Alimony (also called spousal support or spousal maintenance) varies greatly from case to case, state to state and courtroom to courtroom. Even the best attorney can't guarantee you what a judge may decide; however, here are a few common questions we can answer:
Can we agree on our own alimony numbers? For the most part, the court loves for parties to reach their own agreements; however, not all agreements will be approved by the court. As long as the agreement seems fair and in the best interest of the parties involved, you can expect that the court won't second guess your decision.
What factors does the court consider when determining alimony? Every judge will place different weight on different evidence, but factors you can expect to be considered will include the length of the marriage, the age of the spouses at the time of the marriage and divorce, each spouse’s educational background, whether either spouse needs additional education/training to increase earning ability, each spouse’s physical and mental health, each spouse’s employment history and earning capability, the standard of living during the marriage, the current earnings of the spouses and any expected changes in their incomes, the current expenses of the spouses and any expected changes in their expenses, each spouse’s separate and marital property (including property awarded in the divorce or separation proceedings), which spouse has custody of the children and whether that spouse can be expected to work outside of the home or on a full-time basis, any misconduct or fault of either spouse that affected the couple’s financial circumstances or contributed to the breakup of the marriage, tax consequences of support payments to each spouse and whether either spouse is paying support to another person.
What are the different types of alimony in South Carolina? South Carolina law provides four (4) different types of alimony:
Periodic alimony. This term represents what most clients think of when they hear "alimony." The supporting spouse will have to make ongoing monthly support payments for a period of time. Periodic alimony ends early if the supported spouse remarries or lives with another person in a romantic relationship for 90 days or more. It also ends if the supporting spouse dies. The court may review and modify the alimony award in the future if the spouses’ circumstances change.
Lump sum alimony. Lump sum alimony is a set amount of support paid either all at once or in a few installments. The amount cannot be changed after the order is made.
Rehabilitative alimony. The purpose of rehabilitative alimony is to help a spouse attend school or a training program in order to improve job skills and earn more money. This is usually for spouses who have been out of the work force for a significant period of time during the marriage. Payments might be made in one payment or over time. The difference between this type and the two above is simply the purpose behind the payment. Rehabilitative alimony will end when the total amount is paid, if the supported spouse remarries or lives with another person in a romantic relationship for 90 days or if either party dies (unless the order states otherwise). Changed circumstances (such as the supported spouse getting a new job) may also be grounds to modify the prior order.
Reimbursement alimony. Reimbursement alimony compensates a spouse who provided financial or personal support during the marriage which allowed the other spouse to improve their earning capacity through increased training or education. Again, the paying spouse will provide the payments in one lump sum or in installments over time. It generally ends when the amount is paid in full, but might also be terminated by death or the supported spouse living with or remarrying another party.
What is separate maintenance and support? Althoughoften confused with alimony, this is support provided when a couple has not yet requested a divorce, but is no longer living together as husband and wife. This type of support is paid on a regular basis, usually monthly. The court may modify the order if circumstances change during the pendency of the support. Your amount of support while waiting for your divorce is not a guarantee of the amount of alimony you will receive or pay. This type of support generally ends when the parties divorce or either spouse dies.
How is alimony taxed? In most cases (or if the Order is silent on this issue), the spouse paying support can deduct the payments from his/her income while the spouse receiving support must count the payments as income. Although this is the default provision, it can be changed by agreement or Order.
Couples contemplating or proceeding with a divorce always have tons of questions about alimony. Consider taking advantage of a discounted consult with an attorney today to get your questions answered.
How much should you pay? How long do you have to pay it? Are you getting enough? Can you change the amount of child support? South Carolina uses a formula found in the Child Support Guidelines that determines support requirements. While this has helped to make child support amounts a much less contentious issue, there are still questions that can arise:
Is child support supposed to cover all expenses? The child support formula is based on income, but does not have the ability to factor in additional expenses such as health care, private or special schooling and extra-curriculum activities. Your order will dictate how these additional expenses are handled and should be negotiated by your attorney.
Can I request a modification in support? Circumstances change. As a result, parties often have to seek to have their child support payments modified. The amount of child support payments can be modified as the child’s needs or parent’s ability to pay change. Parents have the right to request a review of the support amount when either parent’s financial circumstances change. It's important not to wait until a crisis occurs, as soon as a change is imminent, contact your attorney.
How long do child support payments last? Unlike spousal support, which usually stops when the spouse receiving it remarries, the duty to support one’s children usually is not affected by either party’s remarriage. The obligation to support a child ends only when the child reaches the age of 18 or graduates from high school. There are special circumstances (i.e. children with special needs) where the court may order support beyond this period.
Still have questions about child support? Let us answer them so that payments don't get in the way of your ability to co-parent your children!