DIVORCE AND OTHER FAMILY LAW ISSUES

Presented by:Rita J. Roache, Esquire

S.C. Legal Services12 February 2009

S.C. Legal Services

Is a not for profit corporation whose mission is to provide free legal services to income eligible clients.Also provides community education and outreach.Offices in 13 places around South Carolina.

This presentation is for legal information. It is not legal advice.Neither SCLS or the presenter are in any way providing or contracting to provide legal advice or legal representation.

DIVORCE AND OTHER FAMILY LAW ISSUES

Divorce not allowed in South Carolina until 1947!No no-fault grounds. One year’s separation is our “no-fault” ground.No legal separation in SC. Separate support and maintenance.Cannot “sign” for divorce. Must appear before Judge and prove your case.By filing for divorce, Family Court has control over all issues of the marriage.

RESIDENCY REQUIREMENTS

If both parties live in South Carolina and you have lived here for 3 months, you can file a case.If you have moved to SC and your spouse does not reside here, then you have to wait 12 months to start.Case can be filed where your spouse lives or the county where you last lived as husband and wife.If your spouse has moved out of state or cannot be located, the divorce case can be filed in the county where you live.

GROUNDS FOR DIVORCE

PHYSICAL CRUELTYHABITUAL DRUNKENNESS OR DRUG ABUSEADULTERYDESERTIONSEPARATION FOR MORE THAN ONE YEAR WITHOUT COHABITATION

PHYSICAL CRUELTY

One spouse being physically abusive to the other during the marriage. One incident may be enough if the injuries were serious or life-threatening. Must have proof or corroboration, not just your testimony.No mental cruelty ground in this state.

HABITUAL DRUNKENNESS OR DRUG ABUSE

Excessive drinking or drug abuse by the spouse currently existing in the marriage.Also that the drinking or drug abuse is the cause of the break up of the marriage.For this ground, proof can be in many different ways.

ADULTERY

Adultery is an extra-marital sexual relationship. Can also happen after parties are already separated.Must not prove the actual act, but opportunity and inclination.Corroboration is necessary.

DESERTION

When one spouse leaves the marital home and stays away longer than a year, against the wishes of the other spouse.Rarely used anymore, since we have one year’s separation.

ONE YEAR’S CONTINUOUS SEPARATION

When both spouses live separate and apart for one full year.Usually cannot live in the same home.Do not need the Court to acknowledge that you are separated.Again, must be able to prove the separation by corroborating testimony.

PROOF AND WITNESSES

Your testimony is necessary and that of someone else who is aware of the facts.You and spouse cannot agree of the testimony – no collusion.Witnesses must be over 18 and credible.Witnesses generally should not be children of the marriage.

DEFENSES

Condonation – This amounts to forgiveness.

Recrimination – If both parties are “guilty” of bad conduct, eg. adultery, then neither can get a divorce.

“LEGAL SEPARATION” IN SC

Spouses can separate and go to Court to decide issues before divorce.Court can make decisions on custody, visitation, property, etc. These decisions can be final.Parties can come to an agreement on their own and get Court’s approval.

JURISDICTION OF THE FAMILY COURT

Family Court can decide other issues as well:CustodyChild Support, Medical InsuranceVisitationProperty and Debt DivisionAlimonyRestraining OrdersName Change for WifeAttorney’s Fees and Costs

DIVISION OF PROPERTY AND DEBT

This is called equitable division or distribution.Everything owned during the marriage can be divided: real property, retirement funds, vehicles, household goods, stocks, etc.The Court can give property owned during the marriage to either party. Judge decides what is marital property.Parties can make their own agreement about property and the Judge will usually approve that agreement.

DIVISION OF PROPERTY AND DEBT

The Judge considers a number of different factors in dividing the property:Income of the partiesLength of the marriageMarital misconductCustody of the childrenAmount contributed toward the propertyAmount owed on the propertySeparate property owned by either spouse

DIVISION OF PROPERTY AND DEBT

Judge may also divide the parties’ marital debt.The division of property and debts is final and cannot be changed.

ALIMONYMoney that is paid by one spouse to support another. Either spouse may request alimony.If the Court finds that the requesting spouse committed adultery, they will not be able to receive alimony.Kinds of alimony:Permanent, periodic alimonyTemporary alimonyRehabilitative alimonyLump Sum alimony

ALIMONYAlimony can change based upon the circumstances of the parties.If the receiving spouse moves in with a boyfriend or girlfriend, the alimony can be stopped by the Court.The Judge considers a number of different factors. There is no specific formula to determine the amount awarded.

RESTRAINING ORDERSThe Court can issue restraining orders as a part of the divorce if one spouse needs protection from being harassed or abused.The Court can also issue other restraining orders on a temporary basis while the parties are waiting to be divorced. These usually apply to property and debt issues.The Court can also issue other restraining orders that relate to custody and visitation matters.

CUSTODY, VISITATION AND CHILD SUPPORT

The Court can decide who should have custody of the children.The Court determines child support according to the child support guidelines.Non-custodial parent is usually entitled to some kind of visitation.

CUSTODY

The responsibility for the children’s needs and for making decisions for them.The standard is best interests of the children.The factors vary from case to case, but the Judge will consider all matters surrounding the child or children.

CUSTODYThe Court looks at who has had most of the responsibility for taking care of the children and who is best able to care for them.Court considers:Ages of partiesHealthIncomeEducationParenting stylesReligion

CUSTODY

Employment and work scheduleAge and sex of childrenChild’s preferenceInformation presented by the Guardian ad Litem from their investigationNo more “Tender Years Doctrine”Unfitness does not have to be proved.

CUSTODY

Grandparents have no superior right to custody.Custody can always be changed by the Court.

RESTRAINING ORDERS IN CUSTODY CASES

The Court can issue many different restraining orders preventing the parties from doing certain things:Exposing the children to a paramour.Speaking badly of the other parent in the presence of the child.Use or abuse of alcohol or drugs.Smoking.

RESTRAINING ORDERS IN CUSTODY CASES

Exposure to inappropriate entertainment.Use of vulgar or profane language.Corporal punishment.

ISSUES IMPACTING CUSTODY MATTERS

Alcohol and drug abuse.Psychological Testing.Education of the child.Mental Health of child and parents.Live-in boyfriends and girlfriends.DSS involvement.

Guardians ad Litem

Appointed by the Court to investigate and make a report to the Court.Supposed to represent the best interests of the children.Parties are responsible for the fees.Guardian can request certain information.Important to work with GAL.

VISITATIONIf the non-custodial parent is appropriate, he or she will have some kind of visitation.Must have a suitable home with space for the children.Kinds of visitation:

*Reasonable*Liberal*Supervised

CHILD SUPPORTBoth parents’ income is considered.Child care and medical insurance costs used in formula.Parents can come to agreement.Retroactive child support is rare.Support can go up or down depending upon the circumstances.Parents usually share medical costs.

RESUME MAIDEN NAME

Wife may resume maiden name or a former married name.Cannot be done to defraud creditors.Cannot be done to avoid criminal prosecution.Usually granted by the Court.

ATTORNEY’S FEES

Court can award attorney’s fees to either spouse.Court considers many factors in making the award.

Divorce and other Family Law issues are very complex and you should try to have a lawyer represent you.South Carolina Legal Services may be able to help you. Call our Legal Aid Telephone Intake Service (LATIS) at 1-888-346-5592 for help.

THANK YOU

We appreciate your time and attention.Call 1-888-346-5592 if we can help.