You and your spouse have decided to separate. In South Carolina there is no such thing as a “legal separation.” When couples separate they can petition the Family Court to issue an Order of Separate Maintenance and Support that will control how they care for their children and handle their finances during the separation. Many couples reach an agreement which can then be approved by the court, others need the court to issue a temporary order. Call us as soon as you make the decision to separate and we will guide you through the process. We will help with crafting your temporary agreement or preparing for a temporary hearing. Remember, it is important to think through every element carefully at the outset. It is critical for anyone seeking a separation to obtain support from a skilled and experienced Charleston attorney.
Living separate and apart in South Carolina is living under separate roofs. A couple who stays in separate bedrooms in the same house is not separated.
Separate living spaces on the same property may satisfy the Court’s requirement for separate residences. Every case is difference so you should discuss your living arrangements with a qualified Family Court attorney.
Each party’s circumstances are different. Leaving your home does not mean that you are giving up your property. There may be valid reasons for you to move out of the home or it may be important for you to remain there. We advise consulting with a qualified Family Law attorney prior to making any decisions about moving out of your home.
The South Carolina Rules of Civil Procedure prohibit one lawyer from representing two opposing parties even if the separation is amicable. The parties can hire one attorney to act as mediator, but in this capacity the lawyer/mediator cannot give you legal advice. It is always best for each party to have independent counsel.
South Carolina does not recognize “legal separation”; a couple is either married or divorced. Married couples who separate may petition the Family Court for an “Order of Separate Maintenance and Support.” An Order of Separate Maintenance and Support may establish custody, visitation, and support arrangements and the temporary division of certain marital assets and debts, until the parties’ case is finalized.
South Carolina has five grounds for divorce. The four “fault grounds” are adultery, habitual drunkenness or drug abuse, physical cruelty, and desertion.
One may obtain a “no fault” divorce by living separate and apart from your spouse for more than one year. The one-year clock starts to run for a no fault divorce on the day that the parties separate.
Adultery means having sex with someone other than your spouse. In the Family Court one proves adultery by showing your spouse’s romantic inclination towards a third party and then the opportunity for them to have committed adultery. Evidence must be given by a third-party (e.g., private investigator, friend, or colleague) who has personal knowledge of the inclination and opportunity.
Physical cruelty is proven by showing that your spouse’s conduct created a substantial risk of death or serious bodily injury. Again, you will need a witness to corroborate the grounds.
A divorce on the grounds of habitual drunkenness or drug abuse is proven by showing that your spouse’s consumption is habitual and has caused the breakdown of your marriage. Evidence to support this cause of action may be medical records, criminal records, third party observation, driving records, etc.
Desertion is rarely ever used as a grounds for divorce because the length of time for absence in a desertion claim is the same as the no fault ground of one year.
If it is time to end your marriage, you need the right Charleston divorce attorney to represent you. The Charleston attorneys of Bleecker Family Law understand the legal challenges that arise from intricate family problems. Each case is unique and we treat each client with respect and understanding. You will have the personal attention your case deserves, and our divorce law firm will advise you in a timely and cost-effective manner. It is always best to negotiate a settlement of your case, but if that is not possible we are experienced Charleston divorce trial lawyers and we will take your case to court.
To file for divorce in South Carolina, one spouse must have lived in South Carolina for more than one (1) year, if the other lives outside the state. If you both have lived in South Carolina for more than three (3) months, then either of you may file for a divorce in South Carolina.
Every county in South Carolina has a Family Court. If you meet the residency requirements to file in South Carolina, your case should be filed in the county in which you last lived with your spouse or in the county in which your spouse now resides.
In South Carolina there are four fault grounds for divorce and the no-fault ground of living separate and apart for more than one (1) year. The fault grounds are adultery, habitual drunkenness or drug abuse, physical cruelty, and desertion.
If an aggrieved party is able prove that they meet the elements for a fault-based divorce, the Family Court may grant the divorce ninety (90) days from the date that you filed your Complaint for a divorce. A party seeking a “no fault” divorce may be granted a divorce after proving that they have lived separate and apart (under different roofs) for more than one (1) year.
For a fault-based divorce the ninety (90) day clock begins to run on the date that you file your Complaint. For a no-fault divorce, the clock begins to run as soon as you separate, even if you have not yet filed an action in the Family Court. For example, if you separate from your spouse on March 1, 2015, you will be eligible to ask for a no fault divorce on March 2, 1016.
Your spouse cannot stop you from obtaining a divorce if you are able to prove your claim.
If you and your spouse plan to separate and you have children, the most important issues in your case will involve their custody. If you need an initial custody determination or if you want to modify an existing custody order, then you need our experienced child custody attorneys. Each family is unique, and each has distinct custody, visitation, and child support needs and goals. As advocates for the best interest of the children, we have the skills and experience to effectively handle your case. The Charleston attorneys at Bleecker Family Law have decades of child custody litigation experience in both South Carolina trial and appellate courts. They will work closely with you, the court-appointed Guardian ad litem for your children, school teachers, therapists, pediatricians, and any third party working with the children to ensure the best possible outcome for you and your children. We are also experienced in representing third parties, such as grandparents, who have become involved as custodians and need their legal rights established. If you are fighting a custody battle, reach out to Bleecker Family Law to discuss your child custody questions.
Once a custody order has been issued by the Family Court, it may be changed by showing that there has been a substantial change in circumstances that warrant a modification of the order. This can be done by filing a complaint for modification.
Alternating weekend and holiday visitation with a non-custodial parent has historically been referred to as “standard visitation.” In crafting a visitation plan, it is important to reflect on what will work best for the Children and the parents considering routines, distance between the homes, school, work, and sports schedules, and cooperation. Each of our visitation plans is specifically tailored to your needs. For example, one family may find alternating weeks will be better for the children, another may like alternating weekends – but their weekend runs from Thursday to Monday, still others may want to rotate days 2-3-3-2.
When awarding custody of a child to a parent, the Family Court must consider the child’s best interests. Each parent has full custody rights to children born during a marriage. Mothers have custody of children born out of wedlock until a Family Court issues an order for custody. State law sets out criteria that the court should consider in determining which parent should have custody of a child:
Both parents are responsible for supporting their children. In South Carolina, most child support obligations can be calculated using the South Carolina DSS Child Custody Guidelines Worksheet. In some cases, child support will have to be imputed based on the Guidelines. Typically, the noncustodial parent will pay their share of the support to the custodial parent. Remember that support may extend to providing insurance and payment of other needs for your children. The Charleston lawyers at Bleecker Family Law will work with you and your spouse’s attorney to negotiate the appropriate amount of child support.
In South Carolina, child support is typically established based on formulas and tables created by the South Carolina Department of Social Services, called the “Child Support Guidelines.” Support is based on a number of factors: the parties’ incomes or earning capacities, the number of children being supported, a parent’s prior support obligation, the number of additional children living in the home, work-related daycare expenses, the cost of health insurance for the children, and/or any extraordinary medical expenses for the children.
Under South Carolina law, unmarried or divorced parents may be required to contribute towards their children’s college expenses. Case law sets out a four-part test in which one must show that the child will benefit from college, that the child has a demonstrated ability to make satisfactory grades, that the child cannot otherwise go to school and the parent has the financial ability to contribute. The child has an obligation to apply for any grants or scholarships which may be available to offset the expenses of college.
There is a shared-custody worksheet that can be used to calculate support if a child is with a parent more than 109 nights a year. The Family Court has discretion as to when the shared-custody guidelines are applied. It is best for you to discuss your specific needs with experienced child support lawyers at Bleecker Family Law.
If you are under a Court Order to pay child support, it may be modified by the Family Court if you can prove to the Court that there has been a substantial change in circumstances since entry of the Child Support Order.
If you are under a Court Order to pay child support you must continue to pay until you are released from the order. A standard order may require the paying-parent to continue to pay until the minor child turns 18 years old or graduates from high school, whichever occurs later. However, if your order is silent on when the obligation ends, you may ask the Court to stop your child support payments because your child is emancipated (e.g., your child is 18, is married, is self-supporting, etc.). Parties may agree to extend child support beyond the age of emancipation.
Child support is typically set based on the South Carolina DSS Child Support Guidelines using the parties’ income information, health insurance information, and work-related daycare expenses. In some cases, there may be reasons to deviate from the Guidelines, so it is important to talk with our experienced lawyers at the Bleecker Family Law about your individual needs.
DSS is statutorily required to investigate reports of abuse and neglect of children. Every case begins with the initial report (typically a phone call) wherein an investigative caseworker is assigned and given 45 days to interview and compile evidence to determine if abuse and/or neglect has occurred. Either the child(ren) will be able to reside with the parent, relatives or friends, or they will be removed from the home and placed into foster care. These first 45 days are extremely important and retaining an attorney experienced with DSS laws and policy is vital to setting the tone of a case. If the child is placed into in foster care, the action immediately triggers a court action with a very short notice window to parents and possible caregivers, which can be overwhelming in an already stressful time.
At the conclusion of the 45-day investigation period, DSS will either indicate the case (similar to a charge. For example: physical abuse) or they will unfound it (finding no abuse or neglect). The whole purpose of the agency is to identify the risk of harm to the child, identify the ways to remove the risk, help to remove the risk, and then once the risk has been removed, to return the children to the person(s) they were removed from.
The Department of Social Services is a government agency with many functions under state law. The agency’s role in family law cases primarily encompasses two main parts: abuse and neglect, and child support. Whether you’ve been accused of neglect or abuse or you suspect that your child is suffering at the hands of their other parent, it’s crucial that you understand the role that DSS plays within the court system and what kinds of things you can do to act in the best interests of your child.
Try to be as respectful as possible; this can set the correct tone going forward. Listen to the allegations thoroughly before responding. Write down the name of the caseworker and supervisor, along with any contact information. Be prepared to enlist the help of family and friends who have a clean background and no drug history to step in during the 45-day investigation period. If you would like to touch base with an attorney, do so as soon as possible.
This does not mean you have legal custody of the child. This means that you have physical placement of the child by agreement of the parents and DSS.
You may have the child as few as 45 days, or as long as several months or even years. This depends on if the parents are required to do a treatment plan (drug classes, mental health assessment, stable housing, etc.) and then how quickly the parent(s) go through the process of treatment.
There are two types of DSS findings: database findings and central registry findings. A central registry finding is a finding that would show up if an institution that works with vulnerable populations, such as children or the elderly, made a request to DSS for a background check. It is not a public registry. A database finding is only in the DSS system to capture historical data about founded allegations of abuse and neglect but will be preserved and may be taken in consideration by DSS or the Court if an allegation is made again.
The safety plan is designed to protect the child out of an abundance of caution while DSS does their 45-day investigation. Typically, this involves placing the children with a friend/family member, or having that person move into the home with the parent(s) and child. This document will include the names of the family, the allegations, and then a general physical placement plan of the child, along with any requested restrictions.
You and your spouse have decided to separate. In South Carolina there is no such thing as a “legal separation.” When couples separate they can petition the Family Court to issue an Order of Separate Maintenance and Support that will control how they care for their children and handle their finances during the separation. Many couples reach an agreement which can then be approved by the court, others need the court to issue a temporary order. Call us as soon as you make the decision to separate and we will guide you through the process. We will help with crafting your temporary agreement or preparing for a temporary hearing. Remember, it is important to think through every element carefully at the outset. It is critical for anyone seeking a separation to obtain support from a skilled and experienced Charleston attorney.
Living separate and apart in South Carolina is living under separate roofs. A couple who stays in separate bedrooms in the same house is not separated.
Separate living spaces on the same property may satisfy the Court’s requirement for separate residences. Every case is difference so you should discuss your living arrangements with a qualified Family Court attorney.
Each party’s circumstances are different. Leaving your home does not mean that you are giving up your property. There may be valid reasons for you to move out of the home or it may be important for you to remain there. We advise consulting with a qualified Family Law attorney prior to making any decisions about moving out of your home.
The South Carolina Rules of Civil Procedure prohibit one lawyer from representing two opposing parties even if the separation is amicable. The parties can hire one attorney to act as mediator, but in this capacity the lawyer/mediator cannot give you legal advice. It is always best for each party to have independent counsel.
South Carolina does not recognize “legal separation”; a couple is either married or divorced. Married couples who separate may petition the Family Court for an “Order of Separate Maintenance and Support.” An Order of Separate Maintenance and Support may establish custody, visitation, and support arrangements and the temporary division of certain marital assets and debts, until the parties’ case is finalized.
There are four types of alimony that may be awarded in South Carolina: permanent periodic alimony, rehabilitative alimony, lump sum alimony, and reimbursement alimony.
Alimony is financial support paid to a former spouse after the marriage has been dissolved. Spousal support is financial support paid during separation. Alimony may be paid periodically or in a lump sum. There are many factors that the Court considers when issuing an award of alimony. Unlike child support, there is no formula for alimony in South Carolina. Whether you are facing the responsibility of paying alimony or seeking alimony, it is important to have a qualified Charleston family law attorney who can evaluate your financial and marital situation and advise you about alimony. The attorneys at Bleecker Family Law understand South Carolina alimony laws and have experience fighting for their clients whether they are seeking an alimony award, opposing alimony, or modifying an existing order.
If you are paying non-modifiable alimony, then it cannot be changed. However, if you are paying permanent, periodic alimony it is subject to modification based upon a showing of a substantial change in circumstances. The loss of income may qualify as a substantial change. At Bleecker Family Law, our lawyers have decades of experience dealing with alimony cases, so call us to discuss your particular case.
“Continued cohabitation” means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days because the two periodically separate in order to circumvent the ninety-day requirement.
Separate maintenance and support is paid periodically, but terminates upon the continued cohabitation of the supported spouse, upon the divorce of the parties, or upon the death of either spouse and is terminable and modifiable based upon changed circumstances in the future. The purpose of this form of support may include, but is not limited to, circumstances where a divorce is not sought, but it is necessary to provide for support of the supported spouse by way of separate maintenance and support when the parties are living separate and apart.
In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:
(1) 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;
(2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse, together with the need of each spouse for additional training or education in order to achieve that spouse’s income potential;
(4) the employment history and earning potential of each spouse;
(5) the standard of living established during the marriage;
(6) the current and reasonably anticipated earnings of both spouses;
(7) the current and reasonably anticipated expenses and needs of both spouses;
(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
(9) 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;
(10) 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;
(11) the tax consequences to each party as a result of the particular form of support awarded;
(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
(13) such other factors the court considers relevant.
