Are You Going Through a Divorce in Greenville, South Carolina? DO YOU NEED AN ATTORNEY?

Divorce is an emotional and challenging process, legally and personally. While divorce laws can vary from state to state, it is essential to understand the specific divorce laws in Greenville, South Carolina. In Greenville, divorce laws are governed by the state’s family law statutes, which apply to all couples who are seeking to end their marriage. Our family law attorneys are based in Greenville and can help you understand what your rights are and how to protect yourself. If you have questions about your divorce or are seeking legal advice related to family law, call David W. Martin Law Group today at 803-884-2401.

What are the Grounds for a Divorce in South Carolina?

To be eligible for a divorce in the state of South Carolina, either you or your spouse needs to actually reside in the state for at least one year prior to filing for divorce. Residing in South Carolina gives the courts in that state the power to adjudicate your divorce and related legal issues that may arise.

There are two ways to secure a divorce in South Carolina. One way is to show that your spouse was at fault for the divorce, or a ‘fault-based divorce.’ Another way is to simply separate, neither party needs to be found at fault for causing the demise of the relationship. Here are the grounds for a fault-based divorce in South Carolina:

• Adultery
• Physical abuse
• Habitual drunkenness or use of narcotic drugs
• Desertion for a period of one year

On the other hand, there is separation. This is a ‘no-fault based divorce’ where the married couple has lived separately, without any cohabitation, for a period of at least one year. A separation requires the parties to have had no sexual relationship and no spending the night with each other for that period.

How Will Our Assets Be Split?

Marital v. Non-Marital Property

When getting a divorce, a court will typically divide up the couple’s assets by determining what is marital property and what is non-marital property. Marital property is all real and personal property that has been acquired by the married parties during the course of the marriage. That property needs to be owned at the date of filing or commencement of divorce litigation. For example, if the parties purchased a home together during the course of the marriage and owned it at the time of filing for divorce, that would be considered marital property. Also, gifts exchanged between spouses during the marriage are marital property, subject to division. If the asset is deemed marital property, it is eligible to be distributed during the divorce as part of a settlement.

According to South Carolina law, non-marital property includes the following items:

• Property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse;
• Property acquired by either party prior to the marriage;
• Property acquired after a formal signing of a marital settlement agreement;
• Property acquired after a permanent order of separate maintenance and support has been granted;
• Property excluded by a writing of the parties, including a written contract, prenuptial agreement, or other agreement of the parties as long as it is fair and equitable; and
• Any increase in value in nonmarital property, unless the increase in value was due directly or indirectly to efforts of the other spouse during the marriage.

Once property is labeled as non-marital property, the court does not have the jurisdiction or authority to distribute it between the former spouses in the divorce settlement.

Apportionment Factors

Once the court or legal counsel determines which property is eligible for disposition during a divorce proceeding, the state of South Carolina requires equitable apportionment of that marital property. The court must give weight to the following factors, as they apply in each case:

• The duration of the marriage.
• The ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties.
• Marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:
  • An entry of a divorce or separate maintenance action;
  • A formal signing of a written property or marital settlement agreement; or
  • An 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 value of the marital property, whether the property is within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in the value of the marital property, including the contribution of the spouse as homemaker, provided that the court shall consider the quality of the contribution as well as its factual existence.
• The income of each spouse.
• The earning potential of each spouse and the opportunity for future acquisition of capital assets.
• The health, both physical and emotional, of each spouse.
• The need of each spouse or either spouse for additional training or education in order to achieve that spouse’s income potential.
• The nonmarital property of each spouse.
• The existence or nonexistence of vested retirement benefits for each or either spouse.
• Whether separate maintenance or alimony has been awarded.
• The desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children.
• The tax consequences to each or either party as a result of any particular form of equitable apportionment.
• The existence and extent of any support obligations, from a prior marriage or for any other reason or reasons of either party.
• Liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties and any other existing debts incurred by the parties or either of them during the course of the marriage.
• Child custody arrangements and obligations at the time of the entry of the order.
• Such other relevant factors as the trial court shall expressly enumerate in its order.

What is Spousal Support, and am I Eligible?

A court can order alimony, commonly referred to as spousal support, in amounts and for a term that the court considers appropriate. There are several different types of spousal support that are ordered for varying purposes.

• Periodic Alimony – This type of support terminates once the supported spouse either remarries or continuously cohabitates with a new partner. Periodic support also terminates upon the death of either spouse. It is terminable and modifiable based upon changed circumstances occurring in the future. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to order the payment of alimony on an ongoing basis where it is desirable to make a current determination and requirement for the ongoing support of a spouse to be reviewed and revised as circumstances may dictate in the future.
• Lump-sum alimony – A finite total sum to be paid in one installment or periodically over a period of time, terminating only upon the death of the supported spouse, but not terminable or modifiable based upon remarriage or changed circumstances in the future. The purpose of this form of support may include, but not be limited to, circumstances where the court finds alimony appropriate but determines that such an award is of a finite and non-modifiable nature.
• Rehabilitative alimony –  A finite sum to be paid in one installment or periodically, terminable upon the remarriage or continued cohabitation of the supported spouse, the death of either spouse or the occurrence of a specific event to occur in the future. This type of support is modifiable based upon unforeseen events frustrating the good faith efforts of the supporting spouse to become self-supporting or the ability of the supporting spouse to pay the rehabilitative alimony. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to provide for the rehabilitation of the supported spouse but to provide modifiable ending dates coinciding with events considered appropriate by the court, such as the completion of job training or education and the like, and to require rehabilitative efforts by the supported spouse.

How Can a Greenville Attorney Help With My Divorce?

Our experienced Greenville family law attorneys are an invaluable resource during a divorce. We can help with the following services:

• Understand family law;
• Protect your rights throughout the divorce process;
• Advocate on your behalf in negotiations or in court;
• Provide you objective advice while protecting your best interests.

We provide our clients with guidance and support throughout the legal process to help you achieve the best possible outcome for your individual circumstances. Come by for a consultation in person at our office located at 910 E. North Street, Greenville, South Carolina. You can also call David W. Martin Law Group today at 803-884-2401.