Life and Order: The Legal Ins and Outs of Divorce
Sometimes getting your life in order involves the often painful process of ending relationships, in particular a marriage. Issues involving money, expectations, lack of intimacy, infidelity, physical abuse or substance abuse are sometimes present and make the continuation of the relationship impossible.
South Carolina recognizes several fault grounds for divorce, including physical cruelty, adultery, habitual drunkenness and drug abuse. The South Carolina “no fault” divorce statute is based upon the parties having lived continuously separate and apart for one year. South Carolina law also provides for a decree of separate maintenance and support, where the parties remain married but are legally separated.
The case is initiated by the filing of a complaint with the family court. If there are issues of spousal support, child support, visitation or other matters that need to be immediately addressed, a motion for temporary relief can also be filed. If such a motion is filed, there is a hearing in the family court approximately three weeks later wherein the necessary issues are addressed by the judge in a temporary order. Regardless, whether seeking divorce or legal separation, or whether or there is a temporary order issued by the court, the parties must then attempt to resolve all issues in a final settlement agreement. If a final agreement cannot be reached between the parties and their attorneys, then the parties are required to mediate the issues with a family court mediator. If mediation does not result in a final agreement, the family court will then hear the case at a trial, and the judge will determine the division of property, custody, visitation and all other issues involved in the case based upon the evidence presented at the trial. Where the parties have been able to arrive at a settlement agreement, the parties appear before the family court for a short hearing during which they confirm the agreement, and briefly establish jurisdiction through the testimony of one of the parties. Where the hearing is for a final divorce based upon a year’s separation, in addition to approving the agreement, a corroborating witness is required to testify, confirming that the parties have been continuously separated for at least a year.
If you are considering divorce, prior to consulting with an attorney, gather all of the documentation you can obtain regarding your debts and your assets. The basic information includes information on your earnings, your spouse’s earnings, tax returns, bank statements, retirement fund information, mortgage and credit card statements. Information concerning health insurance and any health issues regarding you or your spouse or your children are also important considerations. Providing this information at the consultation is extremely helpful in advising you as to the financial and other aspects of your case. Your attorney will also need to know about the ages of your children, any special needs they may have, their relationship with you and your spouse, and your preferences for custody and visitation. It is also helpful if you have written down a list of your questions and concerns to address with the attorney during your consultation.
Divorce is stressful and it means adjusting to several new situations, such as a new way of life as a single person and often life as a single parent. There are also financial implications. Every case is different. However, by being prepared, and by careful selection of your legal representative, you can protect your legal rights, navigate through the legal maze and issues, and have the information you need to make the important decisions involved in your particular case and considering your particular circumstances.
Susan L. Brach is a partner in Phipps & Brach, with more than 25 years of complex litigation and family law experience. She is a proven and effective trial attorney with the experience and knowledge to counsel and represent in all areas of family law. She is also a certified family court mediator and collaborative divorce attorney. Susan is one of seven South Carolina female attorneys listed in Martindale Hubbell Bar of Preeminent Women Lawyers.