DOCSLIB.ORG

Divorce in South Carolina Piecing It All Together

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Divorce in South Carolina Piecing It All Together A COMPREHENSIVE GUIDE FOR DIVORCING COUPLES Divorce in South Carolina Piecing It All Together BY STEPHAN FUTERAL, ESQUIRE COPYRIGHT © FUTERAL & NELSON, LLC, ALL RIGHTS RESERVED Copyright Notice Divorce in South Carolina - Piecing It All Together A Free Guide for Divorcing Couples Stephan V. Futeral, Esq. © 2019 Futeral & Nelson, LLC, All Rights Reserved www.charlestonlaw.net ________________________ This book contains material protected under International and Federal Copyright Laws and Treaties. Any unauthorized reprint or use of this material is prohibited. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system without express written permission from the author/publisher. i Foreword We all know that divorces happen far too often. For each new client I meet, I always explore with them the possibility of trying to save their marriage. In a few situations, I am happy to say that my clients were able to work out their differences and create a stable marriage. However, staying together is not always an option, particularly in cases where one spouse is abusive or unfaithful. Nothing in life prepares us for a divorce. For most people, the thought of getting a divorce is highly emotional and, in a word, scary. Everything appears to be at stake and, all at once, unstable - your finances, your relationship with your children, and the future of your family. Your head may be swirling with so many concerns at once. You may be looking for answers to set your mind at ease and to help you understand what you are facing in your divorce. That’s why I’ve put together this book to help guide you through the process of a divorce in South Carolina and to explore some other important issues that typically arise in family court. It’s my sincere hope that after you’ve read it, many of your concerns will be laid to rest and many of your questions will be answered. Best wishes, ! Stephan Futeral, Esq. ii About the Author Disclaimer Stephan Futeral has been a family law attorney since 1993. He This book is for informational purposes and is not intended to was a judicial clerk for the Honorable C. Tolbert Goolsby, Jr., give detailed legal advice. Transmission and receipt of this book Judge of the South Carolina Court of Appeals, and he has been a does not constitute an attorney-client relationship. Stephan law professor at the Charleston School of Law. He serves as a Futeral practices law in South Carolina and he does not seek to Guardian Ad Litem for children in family court and he is a certified represent anyone in any jurisdiction where this book does not family court mediator. He practices law in Charleston, South comply with applicable laws and bar rules. Readers should not Carolina with the law firm of Futeral & Nelson, LLC. act upon the information in this book without first seeking the advice of an attorney licensed to practice in your area. For more information on Stephan Futeral’s professional background, please tap here. Tap to follow Stephan Futeral on: iii CHAPTER 1 The Law “Divorce is a declaration of independence with only two signers.” ~ Gerald F. Lieberman Family court is the last place anyone wants to visit. The laws can be confusing and intimidating. To make the right choices in your divorce, you need an understanding of the law. In this chapter, we’ll cover all the basic legal issues involved in a divorce so you can begin to take the right steps in your divorce. SECTION 1 There are five (5) grounds for divorce in South Carolina - adultery, habitual drunkenness or narcotics abuse, physical Grounds for Divorce cruelty, and desertion for one year are “fault’ grounds for divorce. The fifth ground, one year’s continuous separation, is considered a “no-fault” ground for divorce. 1. FAULT GROUNDS FOR DIVORCE These grounds are based on the fault of one or more of the parties. If there is a determination of fault, that can impact IN THIS SECTION whether one spouse pays for the other spouse’s attorneys fees and can also be a factor in deciding how much alimony should 1. Fault Grounds for Divorce be paid and how to divide the parties’ assets. 2. No-Fault Ground for Divorce Adultery 3. Defenses to Fault To establish adultery, you don’t need to prove it actually 4. Annulment happened. Instead, you can prove adultery by showing “inclination and opportunity.” Inclination is established when 5. Reconciliation you can show that a spouse had a romantic interest outside of the marriage. For example, if the spouse joined online dating sites or sent romantic texts and emails to another person, that is “inclination.” Opportunity is established when you can demonstrate that the spouse had a chance to act upon their inclination. For example, if a husband spends the night in a hotel room with a woman other than his wife, that is opportunity. 5 Habitual drunkenness or narcotics abuse your divorce lawyer will be able to review the facts of your case and what evidence you have and to help you decide if you To prove this ground, you must show that your spouse’s have enough to evidence to prove your case. habitual abuse (not on a single occasion or rare occasions) of alcohol or narcotic drugs caused the marriage’s breakdown Under South Carolina law, to be a ground for divorce, the and that the abuse existed at or near the time of filing for physical cruelty must be “actual personal violence, or such a divorce. There are many ways to prove that the abuse caused course of physical treatment as endangers life, limb or health, the marriage’s breakdown. For example, your spouse may and renders cohabitation unsafe.” A single incident of assault have lost their job due to drinking or drugs or your spouse can be sufficient physical cruelty. Also, actual physical contact may be spending the family’s money on drugs or alcohol. or bodily injury isn’t required to seek a divorce for physical cruelty if the act was (1) life threatening, (2) indicative of an Physical cruelty intention to do serious bodily harm, or (3) of such a degree Physical cruelty are acts of physical violence (hitting with a that there appears to be a risk of serious bodily harm in the baseball bat) or circumstances where a spouse’s conduct future. The family court will consider whether the abuse was created a substantial risk of death or serious bodily harm provoked by the victim, but even if provoked, it will consider (swinging a baseball bat but missing). Recently, the South whether the abuse was proportionate to the provocation. For Carolina Court of Appeals decided that a wife was entitled to a example, in one South Carolina case, the court denied a divorce on the grounds of physical cruelty based on a single divorce on the ground of physical cruelty. The court found assault by her husband when he shoved her into a wall, that “the altercation leading to the parties’ estrangement was verbally abused her, and then broke her telephone when she the only incident of alleged physical cruelty” and that the tried to call for help which left the wife fearful for her safety. spouse who alleged abuse “may have been the aggressor in The Court also noted that the wife had testified to other another incident.” threatening events that ended in the assault all of which Evidence of physical cruelty can come in many forms. Of indicated that the husband had intent to seriously harm his course, the abused spouse may testify about the other spouse’s wife. actions. Others may have witnessed the event(s). Witnesses In South Carolina, the spouse alleging physical abuse must who didn’t actually see the event might still be able to testify prove his or her case by a “preponderance of the evidence,” that the alleged victim was distraught or frantic just moments which is evidence that convinces the court of its truth. The after the alleged incident or might testify that they saw fresh family court judge will make the ultimate determination, and injuries. These witnesses are used to corroborate the 6 testimony of the victim. Sometimes, photographs of injuries Desertion for one year may be introduced into evidence. It is possible that the 911 This is not a ground that we see in family court. Instead, we recording of the call to the police is introduced, although we usually see spouses assert one year’s continuous separation. have seen these calls actually disprove the claims as well. For example, if a spouse calls 911 and says that he or she was just You can seek a divorce on fault grounds even though you attacked seconds ago, but the person is calm and collected, it aren’t yet separated from your spouse. If the divorce is based can hurt that person’s credibility. Evidence can come in many on fault, the family court can’t conduct a hearing until sixty shapes and forms, and if you are seeking to prove physical (60) days after filing for a divorce and it can’t grant the cruelty, use your common sense and give your lawyer ideas to divorce until ninety (90) days after filing for the divorce. help find valuable evidence in your particular case. 2. NO-FAULT GROUND FOR DIVORCE If the alleged abuser is criminally charged with criminal domestic violence (CDV) or assault, sometimes the person will One year’s continuous separation be convicted of the charge or plead guilty.
Load more

Recommended publications
  • Separation and Divorce Information
    Separation and Divorce Information Separation and Divorce Definitions The Legal Process of Separation and Divorce Divorce Mediation Child Support The Emotional Process of Divorce Selecting and Working with Professionals Children and Divorce Taking Care of Yourself During Separation and Divorce The Fairfax County Commission for Women 12000 Government Center Parkway Suite 339 Fairfax, VA 22035 703-324-5730; 711 TTY © 1991; Revised: June 1997, July 2004, August 2010 TABLE OF CONTENTS Introduction......................................................................................... 1 Separation and Divorce Definitions .................................................... 3 The Legal Process of Separation and Divorce................................... 7 Divorce Mediation............................................................................... 9 Child Support.................................................................................... 11 The Emotional Process of Divorce ................................................... 14 Selecting and Working With Professionals....................................... 16 Children and Divorce........................................................................ 19 Taking Care of Yourself During Separation and Divorce.................. 21 Attorney and Legal Service Referrals............................................... 24 Other Resources .............................................................................. 25 Introduction The Fairfax County Commission for Women developed this information
    [Show full text]
  • Report by the Committee on Matrimonial Law the Association of the Bar of the City of New York
    Report by the Committee on Matrimonial Law The Association of the Bar of the City of New York The Case for Amending the New York State Domestic Relations Law to Permit No Fault Divorces Harold A. Mayerson, Chair Eleanor B. Alter, Chair, Legislation Sub-Committee1 November 2004 1 The principal author of this report is Lawrence N. Rothbart. 1 Historically, New York has led the country in legal reform to ensure that its laws protect the welfare of its citizens. However, New York alone is stuck in the past when it comes to one of the most important components of our social fabric -- marriage. Every other state in the United States permits marriages to end without one spouse casting blame upon the other and rehashing the often harsh, painful and embarrassing reasons for the divorce. The fault requirements of the New York State statutes are more than just a reminder of outdated notions of marriage. They have significant financial and emotional costs. A trial on the issue of grounds often costs the litigants thousands of dollars in legal fees, as well as costing the legal system significant court time hearing the details of a marriage which is obviously dead, but may not be entitled to come to an end under the current law. Most troubling, the inability to get divorced may increase incidents of domestic violence and jeopardize the safety and well-being of the spouses. Since 1967 some portion of the Family Law Statutes of the State of New York (the Domestic Relations Law or the Family Court Act) has undergone major modifications approximately every ten years.
    [Show full text]
  • Untying the Knot: an Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866 Danaya C
    University of Florida Levin College of Law UF Law Scholarship Repository Faculty Publications Faculty Scholarship 1-1-2004 Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866 Danaya C. Wright University of Florida Levin College of Law, [email protected] Follow this and additional works at: http://scholarship.law.ufl.edu/facultypub Part of the Common Law Commons, Family Law Commons, and the Women Commons Recommended Citation Danaya C. Wright, Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858-1866, 38 U. Rich. L. Rev. 903 (2004), available at http://scholarship.law.ufl.edu/facultypub/205 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. UNTYING THE KNOT: AN ANALYSIS OF THE ENGLISH DIVORCE AND MATRIMONIAL CAUSES COURT RECORDS, 1858-1866 Danaya C. Wright * I. INTRODUCTION Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture' and the recognition of women's legal rights.2 In 1857, The United Kingdom Parlia- * Associate Professor of Law, University of Florida, Levin College of Law. This arti- cle is a continuation of my research into nineteenth-century English family law reform. My research at the Public Record Office was made possible by generous grants from the University of Florida, Levin College of Law.
    [Show full text]
  • CRFR Briefing1final
    CENTRE FOR RESEARCH ON FAMILIES AND RELATIONSHIPS RESEARCH BRIEFING NUMBER 6 October 2002 Divorce in Scotland Key Points l Divorce in Scotland has a distinct and long history with divorce available in common law since 1560, and the first statute in 1573. l Adultery and desertion were the only grounds for divorce until 1938 when other fault-based grounds were added. Support grew to move towards a no fault approach in the 1960s and 1970s. l The current law on the grounds for divorce is set out in the Divorce (Scotland) Act 1976, which created a single ground for divorce, namely, the irretrievable breakdown of a marriage. This can be proved by adultery, behaviour, desertion or non-cohabitation for 2 years, or if only one party consents, for 5 years. l In 2000, over three quarters of all divorces were granted on non-cohabitation grounds, compared with half that proportion less than twenty years earlier. l One of the most far-reaching features of family change has been the much greater likelihood of divorce than a generation ago, with divorce today socially commonplace. Divorce and separation, rather than death, is now the most common reason for a child not to live in the same household as both its parents. l Data on divorce is not the only indicator of relationship breakdown, since it will not reflect sepa- rations either in marriages where parties are not yet divorced, or the end of non-marital cohabitations. l Divorce is more likely for those who married young, especially as teenagers, who had cohabited before marriage, either with the person they married or someone else, who are unemployed or on low incomes, whose parents were divorced, or who were previously divorced themselves.
    [Show full text]
  • Family Law Book
    Yukon Department of Justice G u i d e to Family Law Justice Yukon Department of Justice Guide to Family Law 2004 © Yukon Department of Justice 2004 ISBN 1-55362-189-1 Editing: Liz McKee, RumKee productions Design and layout: Patricia Halladay Graphic Design Photography: Cathie Archbould This guide provides general legal information to people involved in separation or divorce proceedings. It is also a useful reference on child custody and access, and on child support or spousal support. This publication is not a substitute for legal advice from a lawyer and it does not provide advice on specific situations. The Yukon Department of Justice suggests that people with legal problems contact a lawyer for advice. Words in bold type are listed, with their definitions, in the glossary at the end of the book, along with other terms used in family law. The Yukon Guide to Family Law is based on the Family Law Guide developed by Family Justice Services Western, a pilot project in Corner Brook, Newfoundland. This guide is produced with the financial support of the Department of Justice Canada. It may be reproduced or quoted with appropriate acknowledgement of the Yukon Department of Justice. Acknowledgements The Yukon Department of Justice thanks Family Justice Services Western, and the Department of Justice, Government of Newfoundland and Labrador for permission to use their Family Law Guide as a starting point for this material. We also thank the staff in the Court Services and Legal Services Branches and the Law Line (the Yukon Public Legal Education
    [Show full text]
  • Covenant Marriage
    June 2011 ALSP Law Series Covenant Marriage: Separation and Divorce This fact sheet gives the steps you need to • Physical or sexual abuse of one of your get a covenant marriage divorce in children Arkansas. • Living separate and apart from you for at least 2 years It points out issues for you to think about and • Living separate and apart from you for at choices you will need to make. least 2 years and 6 months, if you have a child Every divorce starts with one person (the plaintiff) • Living separate and apart from you for at filing a complaint asking the court to grant a least 1 year, if you have a child and your divorce decree. The person who files the complaint spouse abused you or the child asking for the divorce is the plaintiff. The person who the divorce is filed against is the defendant. Grounds for Separation The grounds for separation in a covenant marriage To file for a covenant marriage divorce in are stricter than in a normal marriage. You must Arkansas: prove that your spouse committed at least one of these grounds to get a separation: 1. You must have lived in Arkansas for 60 • Adultery days before filing. • Felony or serious crime 2. You must attend marital counseling. • Physical or sexual abuse of one of your 3. You must state grounds. children 4. The grounds must have happened within the • Living separate and apart from you for at last five years. least 2 years • Constantly drinking alcohol for 1 year If your spouse does not want the divorce, then you • Cruel and barbarous treatment that is a have to prove each of these things in court and bring danger to your life a witness or a written affidavit to prove your • General indignities that make it intolerable testimony about the grounds and residency at the to continue being married final hearing.
    [Show full text]
  • Biblical Grounds for Divorce
    Biblical Grounds For Divorce Yardley chaperones her inflorescence else, arty-crafty and guardian. Taylor remains inclinatory after Padraig materialised occupationally or gluttonised any constringencies. Barth remains traced: she unthaws her Gaikwar derange too placidly? It only use someone who comitted adultery because joseph was directed by gabe howard is grounds for biblical divorce, writer whose divorce motivated by the truth of sexual sins are lowering, if she felt Baptists that absolutely did not accept anyone person had my second marriage. The subject provided a for of two unbelievers is original even considered here. Maybe he sleeps in one room, you sleep in another room. Share their divorce grounds for biblical. He told me he won fight or if elder ever left. As a result, it is have clear whether a not the problems and recommendations these participants identified are dream to this divorced sample, contract would translate to couples who remain married. Al personhaft wese führ z got help for biblical grounds for men and afraid of the tip more harmful than that would never commands; do they are with god intends us as the ancestral homeland of. There is retail that touches at to a deep level three sex. But it only if a balm of abuse and procedures if a christian institute for a terrible situation and remarry, wow nancy asked you? Christian woman, but behaved as if I bring high, drunk and manifest in fur right mind. This article confirms it. Thanks for divorce grounds beyond our marriage ended, divorced in the ground for substance abuse a sense that do! He saw much worked, came money, and also sleep our marriage marriage.
    [Show full text]
  • In Virginia, You Can Get a Divorce for Eight Reasons. Four of These
    What are the reasons for a divorce? Who can file for divorce in Virginia? What is an annulment? In Virginia, you can get a divorce To file for a divorce your or your An annulment is a legal decree that for eight reasons. Four of these reasons spouse must live in Virginia for at least six a marriage is void. An annulment don’t require a waiting period: months before the divorce is filed. proceeding can settle the same issues of -adultery, sodomy, or buggery: A divorce is filed in the Circuit custody, child support, and alimony as a These are very difficult to prove and cannot Court, usually in the county or city in divorce. Annulments are only granted if: be used as grounds for divorce if you which you and your spouse last lived -either party was physically or continue to live with your spouse after the together, or where the defendant currently mentally incompetent act is committed. lives. The defendant is the person against -either party consented to the -your spouse’s conviction of a whom the divorce is filed. marriage under condition of fraud or felony and sentence to more than one duress year in prison. This can only be used as Can my spouse prevent me from getting -either party was a felon or grounds for divorce if you do not live with a divorce? prostitute without the other’s knowledge your spouse after they are released. -impotence Four reasons require a waiting Your spouse cannot prevent you -the wife was pregnant by another period of one year: from getting a divorce in the state of man without the husband’s knowledge -physical cruelty.
    [Show full text]
  • Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth Century Divorce Law
    GW Law Faculty Publications & Other Works Faculty Scholarship 2002 Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth Century Divorce Law Naomi R. Cahn George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth Century Divorce Law, 2002 U. Ill. L. Rev. 651 (2002). This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth Century Divorce Law Naomi Cahn* INTRODUCTION For six days in November of 1860, Judge Lott of the Brooklyn Supreme Court heard the divorce case brought by Alfred Beardsley against Mary Elizabeth Beardsley.1 Mr. Beardsley claimed that his wife had committed bigamy2 by marrying another man while she was still married to him. Mr. Beardsley produced the testimony of Father Malone, the Catholic priest who had performed this presumptive second marriage, as well as Thomas Mahon, the alleged second husband. The putative second husband told of how he had courted and wed Mrs. Beardsley, believing her, at the time, to be Miss Emma Evaline Seymore; Miss Seymore had represented not only that she was the daughter of a * Professor of Law, George Washington University Law School. Thanks to Richard Chused, Reva Siegel, Emily Van Tassel, Norma Basch, Dirk Hartog, Philip Hamburger, Susan Sterett, Lisa Lerman, Brian Bix, Ariela Dubler, Carolyn Lawes, Renee Lettow Lerner, and Jennifer Wriggins for comments, and to Stephanie Vo and Trisha Smith for research assistance.
    [Show full text]
  • Divorce and Separation
    What Should I Do If Served With Grounds for divorce in Pennsylvania can be either NO-FAULT or FAULT. Before you can file for di- vorce in Pennsylvania, you and/or your spouse must have resided in the state for at least six months. a Divorce Complaint? Then you must prove that there are grounds, or lawfully acceptable reasons, for a divorce. A divorce action is like any other lawsuit. It If a divorce is by MUTUAL CONSENT the matter will be ripe for the court to grant a divorce 90 begins with a complaint filed in court and Divorce & days after the service of the complaint on the other party and the subsequent filing of the parties’ served on the person against whom it is filed. Affidavits of Consent. If only one spouse wants a divorce and the parties have been living separate If you do not respond, the divorce may pro- and apart for at least two years or two years have passed since the filing of the divorce action, a di- ceed without you being represented or having Separation vorce may be granted if the court determines that the marriage is irretrievably broken. Both of these your rights protected. are NO-FAULT grounds for divorce. You should consult an attorney immedi- Before someone can obtain a FAULT divorce, two things must be proven. First, that he or she is ately upon receiving a divorce complaint. If “innocent and injured,” or not at fault, and second, that misconduct by the other spouse has caused you feel that you cannot afford an attorney, a breakdown of the marriage.
    [Show full text]
  • What You Should Know About Divorce
    What You Should Know About Divorce Introduction Beyond the considerable emotional pain, the end of a marriage is legally complex. This pamphlet reviews alternatives to divorce and failing these, the procedures for obtaining a divorce. Consult a lawyer if your marriage is ending. You will need sound professional advice to determine child custody, financial support, and make a fair division of the property of the marriage. Alternatives to Divorce Depending on your circumstances, you may wish to consider alternatives to divorce—marriage counseling, annulment or separation. Many couples try counseling from a marriage counselor, social worker or psychotherapist as an alternative to divorce. Such counselors are trained to help couples resolve differences. The counselor may be able to help you and your spouse learn communication skills and a better understanding of one another to prevent your marriage from failing. Marriage counseling can be useful when couples find their problems have begun to affect their compatibility with each other. Counseling may also keep a relationship with your spouse from worsening even if divorce is unavoidable. An annulment is a court ruling that a marriage was never legally valid. A marriage can only be annulled if there was a serious defect at the time of the marriage ceremony. In most states, marriages can be annulled if one of the parties was under age at the time of the marriage, if a spouse could not consummate the marriage, if consent was obtained fraudulently, or if the marriage was bigamous or incestuous. People also may seek annulments for religious reasons or because marriage caused a party to lose spousal support from an earlier marriage.
    [Show full text]
  • The Family Law Review an Interim Report
    Breakthrough Britain The Family Law Review An Interim Report Working Group Chaired by Dr Samantha Callan November 2008 About the Centre for Social Justice The Centre for Social Justice aims to put social justice at the heart of British politics. Our policy development is rooted in the wisdom of those working to tackle Britain’s deepest social problems and the experience of those whose lives have been affected by poverty. Our working groups are non-partisan, comprising prominent academics, practitioners and policy makers who have expertise in the relevant fields. We consult nationally and internationally, especially with charities and social enterprises, who are the the champions of the welfare society. In addition to policy development, the CSJ has built an alliance of poverty fighting organisations that reverse social breakdown and transform communities. We believe that the surest way the Government can reverse social breakdown and poverty is to enable such individuals, communities and voluntary groups to help themselves. The CSJ was founded by Iain Duncan Smith in 2004, as the fulfilment of a promise made to Janice Dobbie, whose son had recently died from a drug overdose just after he was released from prison. Chairman: Rt Hon Iain Duncan Smith MP Executive Director: Philippa Stroud The Family Law Review: Interim Report © The Centre for Social Justice, 2008 Published by the Centre for Social Justice, 9 Westminster Palace Gardens, Artillery Row, SW1P 1RL www.centreforsocialjustice.org.uk Designed by SoapBox, www.soapboxcommunications.co.uk 2 Contents Members of the Family Law Review 5 Executive Summary 6 Introduction 11 Section 1: Family Law in the UK today 14 1.1.
    [Show full text]