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.