South Carolina Divorce Procedures

South Carolina Divorce Procedures

Complete overview of South Carolina divorce laws for people considering a South Carolina divorce or filing a South Carolina divorce with issues to be resolved about child custody, child support, visitation and alimony.

South Carolina Divorce Residency Requirements

In order to file your Complaint for Divorce in South Carolina, you must make sure the Family Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the South Carolina residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

In order to institute an action for divorce from the bonds of matrimony the plaintiff must have resided in this State at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have so resided in this State for this period; provided, that when both parties are residents of the State when the action is commenced, the plaintiff must have resided in this State only three months prior to commencement of the action.

Actions for divorce from the bonds of matrimony or for separate support and maintenance must be tried in the county (a) in which the defendant resides at the time of the commencement of the action, (b) in which the plaintiff resides if the defendant is a nonresident or after due diligence cannot be found, or (c) in which the parties last resided together as husband and wife unless the plaintiff is a nonresident, in which case it must be brought in the county in which the defendant resides.

The divorce is typically filed with in county in which the filing spouse resides. (Code of Laws for South Carolina – Chapter 3; Sections 20-3-30, 20-3-60, 20-3-80).

South Carolina Grounds for Divorce

The Complaint for Divorce is the initial document filed with the South Carolina court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds:

No-Fault Based Grounds:
(1) Living separate and apart for at least 1 year without cohabitation.

Fault Based Grounds:
(1) Adultery; (2) Desertion for at least one year; (3) Physical cruelty; (4) Habitual drunkenness or Drug abuse. (Code of Laws for South Carolina – Chapter 3; Sections 20-3-10).

South Carolina Uncontested Divorce

This information is an overview of the uncontested South Carolina divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in South Carolina.

To file for divorce in South Carolina, the filing partner must be a resident of the state for at least a year; however, when both spouses reside in the state, the Plaintiff must be a resident for three months. Between the filing and final decree, a 90-day delay is required. The action may be filed in 1) the county where the Defendant resides, 2) the county where the Plaintiff resides when the Defendent does not live in South Carolina and cannot be located or 3) the county where the couple last lived together if both still live in South Carolina.

Grounds for divorce are No-Fault, which means living separate and apart for one year. General grounds are 1) adultery, 2) alcoholism and/or drug addiction, 3) cruelty and 4) willful desertion for a year.

Actions are filed in the Family Court of the Judicial Circuit.

The filing spouse is called the Plaintiff; the responding spouse is called the Defendant.

South Carolina offers a simplified divorce when the spouses are:

> Filing on the ground of a one-year continuous separation;

> Have no marital property, or have reached an agreement about the division and distribution of martial property;

> Have no marital debt, or have reached an agreement about the division of the debt;

> Have no minor children, or have reached an agreement that meets all the minimum requirements set by the South Carolina Child Support Guidelines.

To launch a divorce on this trajectory, the following forms must be filed in court:

> A Family Court Cover Sheet (SCCA 467/SCBar-467), which includes the name, address, telephone numbers and email address;

> A Certificate of Exemption (SC Bar SD-1), which certifies that the action is exempt from mediation and (usually) that the parties have agreed on custody and visitation, if applicable;

> A Summons (SCBar SD-2), which informs the Defendant that the action has been started and gives him or her 30 days to file an Answer;

> A Complaint for Divorce (SCBar SD-3), which is the instrument that starts the divorce, and it establishes that the couple meet the conditions described above as well as waiving any claims to alimony;

> A Financial Declaration (SCBar 430(a)), which profiles the financial situation of both the Plaintiff and the Defendant;

> A Motion and Affidavit to proceed In Formis Pauperis (SCBar SD-4), which is used by the Plaintiff when he or she cannot afford the filing costs of the action.

> An Affidavit of Service (SCBar SD-5), which is returned to the Clerk when the divorce papers are served by mail or returned by the Sheriff if he or she serves the divorce papers;

> An Application and Affidavit of Default (SCBar SD-6), which is used after more than 30 days have elapsed since the serving of the divorce papers, when no answer has been received in this time and when the Defendant is not in the military;

> A Request for a Hearing (SCBar SD-7), which requests a divorce hearing;

> A Final Decree of Divorce (SCBar SD-8), which includes Findings of Fact and Conclusions of Law and which, when signed by the judge, divorces the parties;

> A Department of Health and Environmental Control (DHEC) Form 0692, which records the divorce for state records.

After the first five forms have been filed with the Clerk of Court, copies of the Family Court Cover Sheet, Certificate of Exemption, Summons and Complaint for Divorce must be served on the Defendant.

This is done by sending the divorce papers Certified Mail, Restricted Delivery, Return Receipt Requested. When the green recipient card comes back, the Plaintiff must file the Affidavit of Service, which authenticates that the Defendant was served and which must be signed in the presence of a notary.

If 35 days after the Defendent has received the divorce papers, he or she has not answered, the Plaintiff may file an Application and Affidavit for Default and a Request for a Hearing. At the hearing a witness must testify that the Plaintiff has lived “separate and apart” from his or her spouse for one year.

South Carolina Simplified Divorce Procedures

The court is authorized to develop and make available sample or mandatory forms for use in divorce matters. These may be available locally from the clerk of the court. [South Carolina Rules of Family Court; Rule 3].

South Carolina Property Division Factors

In South Carolina, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Family Court within the Decree of Divorce.

South Carolina is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Family Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Family Court to be fair.

The court will decide what is marital property and divided that property is an equitable fashion by considering the following factors: A. The length of the marriage. B. The age of the spouses. C. Marital fault or misconduct. D. The current value of the property. E. The contribution each spouse made to the acquisition of the property. F. The income of each spouse. G. The earning potential of each spouse. H. The health of each spouse. I. The need of each spouse. J. The separate property of each spouse. K. The retirement benefits of each spouse. L. The tax consequences. M. Expenses a debts of each spouse. N. The custody arrangement if children are involved. O. Any other relevant factors. (Code of Laws for South Carolina – Chapter 3; Sections 20-7-472, 20-7-473).

South Carolina Spousal Support/Maintenance/Alimony Factors

In South Carolina the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Family Court will order support from one spouse to the other on a case-by-case basis as follows:

The court will consider the following factors when ordering support from one spouse to the other: (A) the length of the marriage and the ages of the spouses; (B) the health condition of each spouse; (C) the educational background of each spouse and the ability to produce income; (D) the past employment and earning potential of each spouse; (E) the standard of living established while married; (F) the current incomes of each spouse; (G) the current expenses of each spouse; (H) the assets of each spouse; (I) custody of the children (K) the tax consequences to each spouse (L) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and (M) such other factors the court considers relevant. (Code of Laws for South Carolina – Chapter 3; Sections 20-3-120, 20-3-130, 20-3-140).

South Carolina Child Custody Factors

In South Carolina, when making a custody award the court will consider the child’s preference if it is deemed to be appropriate. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference. The court will also consider evidence of domestic violence, the current situation and nature of the divorce, and the religious faith of the parents. The court will not award custody based upon the gender of the parent. (Code of Laws for South Carolina – Chapter 3; Sections 20-3-160, 20-7-100, 20-7-1520).

South Carolina Child Support Factors

Both parents have joint responsibility for child support. The court may require income withholding for the guarantee of child support payments. There are official child support guidelines which are presumed to be correct unless 1 of the following factors requires a deviation from the amount: (1) educational expenses for the child or a spouse; (2) the equitable distribution of property; (3) any consumer debts; (4) if the family has more than 6 children; (5) unreimbursed extraordinary medical or dental expenses of either parent; (6) mandatory retirement deductions of either parent; (7) support obligations for other dependents; (8) unreimbursed extraordinary medical or dental expenses of the child; (9) other court-ordered payments; (10) any available income of the child; (11) a substantial disparity in the income of the parents which makes it impractical for the non-custodial parent to pay the guideline amount; (12) the effect of alimony on the circumstances; and (13) any agreements between the spouses, if in the best interests of the child. [Code of Laws of South Carolina; Chapter 3, Sections 20-3-160, 20-7-40, 20-7-100, 20-7-852, 20-7-1315, and 43-5-580 and South Carolina Case Law].

South Carolina Grandparent’s Rights
 
Grandparent Rights to Visitation: None specified in the statute. Case law states that grandparents must show exceptional circumstances to get court-ordered visitation. Title 20, Section 20-7420 (C.L.S.C. § 20-7420).

When Adoption Occurs: Adoption terminates all rights.

Child Custody Statutes: Determined “…as from the circumstances of the parties and the nature of the case and the best spiritual as well as other interests of the children as may be fit, equitable and just.” C.L.S.C. §20-3-160.

Parents May Choose: No

South Carolina Military Divorce Laws

A South Carolina military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From South Carolina Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local South Carolina court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a South Carolina court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

- You or your spouse must reside in South Carolina
- You or your spouse must be stationed in South Carolina

Grounds for South Carolina Military Divorce

The grounds for a military divorce in South Carolina are the same as a civilian divorce.

Dividing the Property

Along with the normal South Carolina property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In South Carolina, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal South Carolina child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

South Carolina Child Support Guidelines

The South Carolina child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate South Carolina child support order.

South Carolina Child Support Guidelines

Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: YES
UIFSA: YES

* The Income Shares Model: South Carolina child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the South Carolina child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

South Carolina Child Support Definitions

The court may adjust the minimum child support award, of either or both parent’s share of the minimum child support award, based upon the following considerations: Deviation from the guidelines should be the exception rather than the rule. When the court deviates, it must make written findings that clearly state the nature and extent of the variation from the guidelines. These Child Support Guidelines do not take into account the economic impact of the following factors which can be possible reasons for deviation:

(1) Educational expenses for the child(ren) or the spouse (i.e., those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or related costs);
(2) Equitable distribution of property;
(3) Consumer debts;
(4) Families with more than six children;
(5) Unreimbursed extraordinary medical/dental expenses for the noncustodial or custodial parent;
(6) Mandatory deduction of retirement pensions and union fees;
(7) Child-related unreimbursed extraordinary medical expenses;
(8) Monthly fixed payments imposed by court or operation of law;
(9) Significant available income of the child(ren);
(10) Substantial disparity of income in which the noncustodial parent’s income is significantly less than the custodial parent’s income, thus making it financially impracticable to pay the amount the guidelines indicate the noncustodial parent should pay;
(11) Alimony. Because of their unique nature, lump sum, rehabilitative and reimbursement alimony may be considered by the court as a possible reason for deviation from these guidelines.
(12) Agreements Reached Between Parties.

DEFINITIONS:

(1) Gross Income. Gross income includes income from any source including salaries, wages, commissions, royalties, bonuses, rents (less allowable business expenses), dividends, severance pay,pensions, interest, trust income, annuities, capital gains, social security benefits (but not Supplemental Security Income), workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Veterans’ benefits and alimony, including alimony received as a result of another marriage and alimony which a party receives as a result of the current litigation. Unreported case income should also be included if it can be identified.

(a) The court may also take into account assets available to generate income for child support. For example, the court may determine the reasonable earning potential of any asset at its market value and assess against it the current treasury bill interest rate or some other similar appropriate method of computing income.
(b) In addition to determining potential earnings, the court should impute income to any non-income producing assets of either parent, if significant, other than a primary residence or personal property. Examples of such assets are vacation homes (if not maintained as rental property) and idle land. The current rate determined by the court is the rate at which income should be imputed to such nonperforming assets.

Gross income does not include:

(a) Benefits received from means-tested public assistance programs, such as Temporary Assistance to Needy Families (TANF), Supplemental Security Income (SSI), Food Stamps and General Assistance;
(b) Income derived by other household members; and/or
(c) In-kind income; however, the court should count as income expense reimbursements or in-kind payments received by a parent from self- employment or operation of a business if they are significant and reduce personal living expenses, such as a company car, free housing, or reimbursed meals.

(2) Income From Self-Employment or Operation of a Business. For income from self-employment, proprietorship of a business, or ownership of a partnership or closely held corporation, gross income is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operation, including employer’s share of FICA. However, the court should exclude from those expenses amounts allowed by the Internal Revenue Service for accelerated depreciation or investment tax credits for purposes of the guidelines and add those amounts back in to determine gross income. in general, the court should carefully review income and expenses from self-employment or operation of a business to determine actual levels of gross income available to the parent to satisfy a child support obligation. As may be apparent, this amount may differ from a determination of business income for tax purposes.

(3) Potential Income. If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent. If income is imputed to a custodial parent, the court may also impute reasonable day care expenses. Although Temporary Assistance to Needy Families (TANF) and other means-tested public assistance benefits are not included in gross income, income may be imputed to these recipients. However, the court may take into account the presence of young children or handicapped children who must be cared for by the parent, necessitating the parent’s inability to work.

(a) The court may also wish to factor in considerations of rehabilitative alimony in order to enable the parent to become employed.
(b) In order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent’s recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.

B. Monthly Alimony.
Any award of alimony between the parties should be taken into consideration by the court when utilizing these guidelines as a deduction from the payer spouse’s gross income, and as gross income received by the recipient spouse. Because of their unique nature, lump sum, rehabilitative, reimbursement, or any other alimony the court may award, may be considered by the court as a possible reason for deviation from these guidelines. The purpose of this adjustment is not to give priority to alimony or child support payments. The purpose of these adjustments is to recognize that each parent’s proportional share of total combined monthly income changes with the introduction of any alimony award between the parties and to provide for a sharing of the Total Combined Monthly Child Support Obligation based upon each parent’s actual percentage share of the total combined monthly income, taking into consideration the financial impact of any alimony award between them, rather than the parent’s share of the total combined monthly income as it existed before any alimony award. Accordingly, the court, in its discretion, may consider any modification or termination of any alimony award between the parties of a child support award made under these guidelines. This adjustment does not affect the Total Combined Monthly Child Support Obligation of both parents as determined under these guidelines, which may be determined before any determination on the issue of alimony, as the total combined monthly income of both parties will remain the same irrespective of any income shifting between the parents as the result of an alimony award.

C. Other Monthly Alimony or Child Support Paid.
Any previous or existing court orders requiring the payment of child support, alimony, or both, should be protected by any, subsequent child support order. Alimony actually paid as a result of another marriage or child support actually paid for the benefit of children other than those considered in this computation, to the extent such payment or payments are required by a previous or existing court order, should be deducted from gross income.

D. Other Children in the Home.
Either parent shall receive credit for additional natural or adopted children living in the home, but not for step-children, unless a court order established a legal responsibility. Using the income of the parent with the additional child(ren) in the home only, the basic child support obligation for the number of additional dependents living with that parent (from the Schedule of Basic Child Support Obligations) is determined for that parent. This figure is multiplied by .75 and the resulting credit is subtracted from that parent’s gross income.

E. Basic Child Support Obligation.
The court can determine the basic child support obligation using the Schedule of Basic Child Support Obligations. “Combined gross income” refers to the combined monthly gross incomes of the parents. Where combined gross income amounts fall between the amounts reflected in the Schedule of Basic Child Support Obligations, the court is encouraged to extrapolate upwardly to set the basic award. The number of children refers to that number for whom the parents share support responsibility and for whom support is being sought.

F. Self Support Reserve.
A self support reserve allows a low-income noncustodial parent to retain a minimal amount of income before being assessed a full percentage of child support. This insures that the noncustodial parent has sufficient income available to maintain a minimum standard of living which does not affect negatively his or her earning capacity, incentive to continue working, and ability to provide for him or herself. These Guidelines incorporate a self support reserve of $500.00 per month. In order to safeguard the self support reserve in cases where the noncustodial parent’s income and corresponding number of children fall within the shaded area of the Schedule of Basic Child Support Obligations, the support obligation must be calculated using the noncustodial parent’s income only. To include the custodial parent’s income in the calculation of such cases would reduce the noncustodial parent’s net income below the self support reserve.

G. Health Insurance.
The court shall consider provisions for adequate health insurance coverage for children in every child support order. Ordinarily, the court should require coverage by that parent who can obtain the most comprehensive coverage through an employer, or otherwise, at the most reasonable cost. If either parent carries health insurance for the child(ren) who is to receive support, the cost of the coverage should be added. If the employer provides some measure of coverage, only that amount actually paid by the employee or contributed by the employee should be added. Note that the portion of the health insurance premium which covers the children is the only expense that should be added. If this amount cannot be verified, the total cost of the premium should be divided by the total number of persons covered by the policy and then multiplied by the number of children in the support order. Whichever party is responsible for paying the health insurance premium will receive a credit. The guidelines are based on the assumption that the custodial parent will be responsible for up to $250.00 per year per child in uninsured medical expenses. Extraordinary medical expenses, not addressed in the guidelines, are defined as reasonable and necessary uninsured medical expenses in excess of $250.00 per year per child. Under this definition, what is “reasonable and necessary” – e.g. orthodontia and professional counseling – would be at the discretion of the court. Extraordinary unreimbursed medical expenses addressed by the court shall be divided in pro rate percentages based on the proportional share of combined monthly adjusted gross income.

H. Child Care Costs.
The cost of day care the parent incurs due to employment or the search for employment, net of the federal income tax credit for such day care, is to be added to the basic obligation. This is to encourage parents to work and generate income for themselves as well as their children. However, day care costs must be reasonable, not to exceed the level required to provide high quality care for children from a licensed provider. The value of the federal income tax credit for child care should be subtracted from the actual cost of day care to arrive at a net figure. However, lower income single heads of household do not incur enough tax liability to benefit from the federal tax credit for child care. Therefore, the federal tax credit should be deducted from the actual child care expenses only for parents with incomes high enough to realize at least three-quarters of the full benefit of the credit.

I. Age Adjustment.
Economic research suggests that expenditures on children increase during teenage years. Such research indicates that expenditures on children in the 12-17 age group are significantly higher than expenditures on children in the 0-11 age group. Given that childrearing expenditures are higher for older children, an issue in the development of guidelines is whether there should be age adjustments; that is, whether the guidelines should incorporate separate scales by age of the children. However, since these guidelines are based on economic data which represent estimates of total expenditures on child rearing up to age eighteen, except for child care and most health care costs, the need for separate scales has been eliminated.

J. Computation of Child Support.
The court can determine a total child support obligation by adding the basic child support obligation, health insurance premium (portion covering children), and work related child care costs. (1) The total child support obligation is divided between the parents in proportion to their income. Each parent’s proportional share of combined adjusted gross income must be calculated. Compute the obligation of each parent by multiplying each parent’s share of income by the total child support obligation, and give the necessary credit for adjustments to the basic combined child support obligation. (2) Although a monetary obligation is computed for each parent, the guidelines presume that the custodial parent will spend that parent’s share directly on the child in that parent’s custody. In cases of joint custody or split custody where both parents have responsibility of the child for a substantial portion of the time, there are provisions for adjustments.

South Carolina Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the South Carolina Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Plaintiff

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
State of South Carolina, The Family Court of the __________ Judicial Circuit

The proper name of the court in which a Divorce is filed in the state of South Carolina. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Complaint for Divorce

The title and name of the legal document that will initiate the South Carolina Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Decree of Divorce

The title and name of the legal document that will finalize the South Carolina Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Family Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

South Carolina authorizes legal separation (separate maintenance). [Code of Laws of South Carolina; Chapter 3, Section 20-3-140].

Property Distribution:
Equitable Distribution

The applicable South Carolina law that will dictate how property and debt is to be divided upon Divorce.

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