Overview of Divorce Laws in South Carolina
If you are facing the possibility of divorce in South Carolina, it is important that you have a basic understanding of what the laws are that will impact you.
To best protect yourself, you need to know how the division of assets, child custody, child support and alimony and other critical issues will be handled by the court before you start the process.
Here are some of the most important things to know about divorce laws in South Carolina:
- Equitable Distribution and Asset Division
- Spousal Support and Child Support
- Child Custody and Visitation
- Divorce Process
- Other Divorce Issues
Equitable Distribution and Asset Division
South Carolina is an equitable distribution state which means in a divorce, all marital property will be divided in a fair and equitable manner, but not necessarily 50/50. Several things are taken into account to reach this decision.
Marital property is that which has been acquired during the course of the marriage as a direct results of the efforts and labors of each spouse.
Non-marital property is defined as that which was acquired prior to the marriage or can clearly be identified as separate property, such as with a gift or inheritance that has not been commingled.
Just like assets, any debts acquired during the course of a marriage in South Carolina belong to both spouses, even if the debt was made in the name of only one spouse.
In some instances, as part of a discussion of a division of assets, one spouse or the other may agree to assume a larger part of one debt in exchange for other concessions, such as retaining a larger degree of interest in a home or in a retirement account.
Debts that are incurred after marriage or separation, or before a marriage or separation only belong to the spouse who incurred them.
Division of Assets in South Carolina
To determine what is a just and fair distribution of assets in South Carolina, a court may take several issues into consideration.
Once it is determined which property is marital and which is separate, a court will consider things such as economic misconduct, income and earning capacity or how much one spouse has contributed to the other’s education or earning capacity.
If one spouse has sole custody of children, this could also impact the amount of a distribution in favor of that spouse, including the possible awarding of the family house.
When an at-fault reason is stated for the divorce, this may be used as a determining factor in awarding a greater percentage to one spouse as well.
A judge may also consider non-monetary contributions to the marriage and put value on a stay-at-home spouse’s contributions if they took care of children, engaged in household chores and homemaking or supported their spouse professionally.
A prenuptial agreement can contain a legally binding property agreement that can take precedence over state property division laws.
Gifts and Inheritance
Gifts or inheritance received by one spouse in a marriage are considered separate property in South Carolina.
To avoid disagreements, when possible, try to document the receipt of a gift, along with any notations that will help to clearly define the intent of ownership should the subject come up at a later date. This can also be clarified through the execution of a prenuptial or postnuptial agreement.
Separate ownership can be challenged if the person who received the asset commingles it with marital assets. For example, inherited or gifted monetary assets that are placed in a joint bank account could cause the spouse to lose their sole interest. Also, if you inherit a home but both you and your spouse move into the home, it could be considered marital property.
Pensions, IRAs, 401Ks and Retirement Plans
Pensions, IRAs, 401Ks and retirement plans are treated just like other assets in a South Carolina divorce. They are considered marital property and dividing them must be taking into consideration as part of the divorce process.
However, only the portion of the pension earned during the time of the actual marriage can be considered. This means if you contributed to a retirement plan before or after a marriage, that part remains a separate asset.
Many times, because pensions can involve large amounts of money, they may be used to negotiate when trading off value in other assets such as a house. For example, if there is a lot of equity in a home, one spouse may trade off an interest in pensions or retirement funds in exchange for taking possession of the family home.
Legally splitting pensions and other retirement funds are a multiple step process.
First, a divorce decree must order that these assets be divided.
From this, a qualified domestic relations order, more commonly referred to as a QDRO, will be created. The QDRO must be approved by the courts and then it can be submitted to the plan administrator of each pension account who must also approve it.
This establishes that your spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
You can get your QDRO online! We recommend QDRO Counsel since their interface makes it easy (and inexpensive) to have your Qualified Domestic Relations Order drafted and filed.
Separate property does not need to be considered as part of a division of assets in South Carolina. It may include:
- Any asset that was owned by one spouse before the marriage
- Property that was given to one spouse as a gift or inheritance
- Awards from certain kinds of personal injury settlements that took place even while a couple was married
For example, in cases where a home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but community property instead.
To stop arguments regarding what is community vs separate property, couples may enter into pre- or postnuptial agreements to define which type of property an asset will be.
Spousal Support and Child Support
Spousal Support in South Carolina
In South Carolina, spousal support is determined using a number of statutory factors based on state law. Those factors include:
- the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
- the physical and emotional condition of each spouse;
- the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;
- the employment history and earning potential of each spouse;
- the standard of living established during the marriage;
- the current and reasonably anticipated earnings of both spouses;
- the current and reasonably anticipated expenses and needs of both spouses;
- the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
- custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
- marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
- the tax consequences to each party as a result of the particular form of support awarded;
- the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
- such other factors the court considers relevant.
Learn More: Everything You Need to Know About Alimony
Child Support in South Carolina
Both parents must contribute to a child’s well-being in South Carolina. Generally, the non-custodial parent will be required to make payments to support children.
The amount is governed by South Carolina’s Child Support Guidelines and is administered by the South Carolina Department of Social Services. It is partially based on the number of children in a marriage and the income of both parents. The amount of time a child spends with each parent will also have an impact as well.
Child Custody and Visitation
Child Custody in South Carolina
In South Carolina, the court may award sole or shared custody. When a parent has sole custody, the child primarily lives with one parent while the other parent may have visitation rights.
The parents may share legal custody, meaning both parents make decisions on behalf of the child.
In all cases, child custody is determined by what the best interests of the child are. That means if there instances of abuse, neglect, drug or alcohol abuse or other negative issues, it could have a material impact on the amount of time a child spends with a parent.
Absent any of these issues, courts generally favor a parenting plan where both parents actively and regularly contribute to the upbringing of the children in a divorce.
Courts also consider the age, health and emotional ties a child has to each parent. Involvement in social, religious, school or other activities may also play a factor as well.
Substance abuse is one of the five grounds for divorce in South Carolina.
To state it as the grounds for a divorce, a spouse needs to show more proof than just the mere consumption of drugs or alcohol. It must be shown that the habitual use caused the breakdown of the marriage.
This can be in form or medical records for substance abuse treatment, criminal records showing convictions and arrests for substance abuse or a poor unemployment record due to abuse. In some cases, a third party may also be able to be a witness to help substantiate a claim.
Bifurcation of Martial Status
Bifurcation means that both parties in a divorce can be legally declared as a single person while the issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Although it is legal in South Carolina, bifurcation is rarely granted because it removes the incentive to resolve all the issues in a divorce and it means additional work for the courts because two trials must take place instead of one.
South Carolina requires spouses must complete financial disclosure documents so that a proper division of assets can take place and may be used in alimony requests as well.
When a spouse lies about their financial information or if they refuse to disclose and exchange it, the court may order them to do so. Further refusals can result in civil or criminal charges, or a spouse forfeiting the value of various assets to their other spouse.
When a spouse who is served with a petition for divorce and fails to respond, they may be subject to a default judgment.
A default judgment is a judgment that basically gives the petitioner whatever they asked for in the petition, as long as it is within reason.
The petitioner must be able to show that the proposed property division is “just and right” and that if they are asking for custody and support regarding any children that are involved, it is in the best interests of the children.
Your spouse has 35 days after receiving the initial divorce documents to file an Answer. After the 35 days have passed and you have not received the answer:
- Complete the Affidavit of Default for Divorce and the Request for Hearing.
- On the Affidavit of Default for Divorce, print the month, day and year the Summons and Complaint was delivered. Check the box indicating how the forms were served.
- Sign the Affidavit of Default for Divorce in front of a notary public.
- Complete and sign the Request for Hearing
- Take the Affidavit of Default for Divorce, Request for Hearing, and green card (if you served your spouse via U.S. Mail) to the Court and file them with the Clerk’s office.
Other Divorce Issues
When domestic violence is present in a marriage in South Carolina, personal safety is often more important than actually starting a divorce process. It is imperative that you take steps to protect your safety first by leaving the home where the abuser is and seeking a temporary restraining order or protective order to buy yourself time while more permanent measures can be put into place.
Domestic violence can take place in many ways against any member of a household, including:
- Intentionally or recklessly causes or attempts to cause bodily injury
- Sexual assault
- Isolating or controlling victims
- Destroying personal property
- Harassment, including telephone calls, mail, through social media
Physical cruelty is one of the grounds that can be used in a fault-based divorce, but a spouse must be able to show that the spouse’s conduct created a substantial risk of death or serious bodily harm and involved actual personal violence.
In South Carolina, the spouse alleging physical abuse must prove his or her case by a “preponderance of the evidence,” which is evidence that convinces the court of its truth.
Your children can continue to receive the same health insurance benefits after a divorce, but as an ex-spouse you cannot. Once a divorce decree is signed, you will no longer be eligible to get health insurance from an ex-spouse’s employer.
These policies are meant for employees and their immediate families, and a divorce declares that you are no longer a family member.
While a divorce is pending, judges will usually issue a temporary order that will prevent one spouse from removing or changing their health insurance as it relates to the other spouse.
If you are the spouse who will be losing health insurance coverage, then you should disclose the cost of what a plan will be for you so that they may be figured into any spousal support ruling.
You may be able to continue health insurance through your ex-spouse’s plan as part of the Consolidated Omnibus Budget Reconciliation Act, better known as COBRA. But if this is the case, you will be required to pay the premiums that were formerly paid by the spouse and the employer. This can make coverage quite costly and you may want to explore other alternatives.
If your spouse keeps working for the employer and they have at least 20 employees, then you can stay on COBRA for up to 36 months maximum.
Infidelity and Adultery
Infidelity is one of the five grounds for divorce in South Carolina.
When it is used as a basis for divorce, it must be proven to obtain the divorce. Direct proof is not required. Circumstantial evidence will do.
Adultery does not affect property division or child custody in most cases, but it will have an impact on how alimony is determined. A spouse who commits adultery in South Carolina isn’t eligible to receive alimony. The only exception is if the faithful spouse knew about and allowed the affair.
Military Divorces in South Carolina
Special laws that supersede state laws in many instances are in place for members of the military who will be going through a divorce in South Carolina.
The Servicemembers Civil Relief Act eases legal and financial burdens of military personnel and their families who face the added challenges of active duty. Divorce proceedings can be postponed until the servicemember finishes active duty obligations as part of the Act.
Normally, getting a divorce requires a one year minimum residency in South Carolina. However, the state will allow a service member to file for divorce in the state if they have been stationed on a South Carolina military base for a year, including off-shore naval ships, even if they do not intend to remain in the state.
The grounds for military divorces are the same as non-military divorces in South Carolina. Irreconcilable differences or one of four fault-based reasons must be stated when getting a divorce.
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