Divorce in South Carolina is legally referred to as Divorce from the Bonds of Matrimony.
To file for divorce, either the Plaintiff (filing party) or the Defendant (non-filing party) must have resided in the State for at least one year prior to filing. If both parties are residents of the State when the action is commenced, the Plaintiff must have resided in the state only three months prior to filing.
This also applies to active duty military service members who have had a continuous presence in the State for the period required, regardless of intent to permanently remain in South Carolina.
The Plaintiff may file a Complaint for Divorce in the Court of Common Pleas in the county where the Defendant resides at the time of filing. If the Defendant is a non-resident, or cannot be found, the action may be filed in the county where the Plaintiff resides, or, if the Plaintiff is a resident, in the county where both parties last resided together as husband and wife.
No reference shall be had before two month after the filing of the Complaint, nor shall a final decree be granted before three months after filing.
The court, upon the granting of a final judgment of divorce or an order of separate maintenance, may allow a party to resume a former surname or the surname of a former spouse.
Legal Grounds for Divorce
Divorce, in South Carolina, may be granted on the following grounds:
If it appears to the court that the parties to any divorce proceeding colluded or that the act alleged was done with the knowledge or assent of the Plaintiff for the purpose of obtaining a divorce, the court shall not grant the divorce.
The court of common pleas shall have authority to hear and determine any issue affecting the validity of a contract of marriage.
All marriages contracted while either of the parties has a former wife or husband living shall be void. This does not apply to a person whose husband or wife is absent for a period of five years, and he/she does not know if the absent spouse is living during that time, nor to any person who has divorced the former spouse, or whose first marriage has been declared void by a court.
Any person under the age of 16 years is not capable of entering into a valid marriage, and any marriage where either one or both parties is under 16 years, is void, and is so during its entire alleged existence. When a party is at least 16, but not yet 18 years of age, and lives with his/her parents, other relative, or guardian, he/she may only enter into a valid marriage with the consent of his/her father, mother, other relative, or guardian.
The following are prohibited marriages:
- Either party is mentally incompetent;
- Marriage between a man and his mother, grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister, mother's sister, or another man; and
- Marriage between a woman and her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother, mother's brother, or another woman.
When the validity of a marriage is denied or doubted by either of the parties, the other party may institute a suit for affirming the marriage and, upon due proof of its validity, it shall be decreed to be valid and it shall be conclusive upon all persons concerned.
If any such contract has not been consummated by the cohabitation of the parties, the court may declare the contract void for want of consent of either of the contracting parties or for any other cause going to show that, at the time the supposed contract was made, it was not a contract.
When a person married in South Carolina or who lived with his/her spouse in the state after the marriage, has been abandoned by his/her spouse for seven years without knowing or hearing anything about the absent spouse, the abandoned spouse may have the absent spouse adjudicated as dead. The later reappearance or return of the absent spouse will not invalidate or upset any subsequent marriage entered into by the abandoned spouse.
In a proceeding for divorce or separate support and maintenance, the court shall make a final equitable apportionment between the parties of their marital property upon request by either party in the pleadings.
In making apportionment, the court will give consideration to all of the following factors:
- The length 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 or other marital action between the parties;
- Marital misconduct or fault of either or both parties, whether or not used as a basis for the divorce, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage;
- The value of the marital property, whether the property is inside or outside the State;
- The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in 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 his/her income potential;
- The non-marital 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 in the home for reasonable periods to the spouse having custody of any children;
- The tax consequences to each 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, 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; and
- Any other relevant factors, which the court shall spell out in its order.
Marital property is defined by statute as all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation, regardless of how legal title is held, except the following property, which is considered non-marital property:
- Property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse;
- Property acquired by either party before the marriage;
- Property acquired by either party after entry of a pendente lite order in a divorce or separate maintenance action; formal signing of a written property or marital settlement agreement; or 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, whichever event occurs first;
- Property acquired by either party in exchange for the non-marital property already described above;
- Property excluded by written contract of the parties; and
- Any increase in value in non-marital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.
Gifts of property between spouses, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property which is subject to division.
The court does not have jurisdiction or authority to apportion non-marital property.
Alimony and Support
In every divorce action, either party may request alimony, either in his/her Complaint or Answer, or by Petition.
No alimony may be awarded to a spouse who commits adultery before the earliest of the following events: the formal signing of a written property or marital settlement agreement; or the 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.
Alimony and separate maintenance and support awards may be granted pendent lite (temporary, pending the litigation) and permanently, in such amounts and for periods of time as the court considers just, including the following:
- Periodic Alimony - where the court finds it appropriate to make a current determination to award a payment of alimony on an ongoing basis, but there is a requirement for the support to be reviewed and revised as circumstances dictate in the future. This support terminates on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse.
- 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 a supported spouse. It will not terminate and is not modifiable based upon remarriage or changed circumstances in the future.
- Rehabilitative Alimony - a finite sum to be paid in one installment or periodically awarded when the court finds it appropriate to provide for the rehabilitation of the supported spouse, but to allow for modification for specific events, such as the completion of job training or education, and to require rehabilitative efforts by the supported spouse. This support is 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. It is modifiable based on unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting, or the ability of the supporting spouse to pay the rehabilitative alimony.
- Reimbursement Alimony - a finite sum to be paid in one installment or periodically, when the court finds it necessary and desirable to reimburse the supported spouse from the future earnings of the paying spouse based upon circumstances or events that occurred during the marriage. It is terminable on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse, but is not terminable or modifiable based upon changed circumstances in the future.
- Separate Maintenance and Support - to be paid periodically, ordered when a divorce is not sought but it is necessary to provide for the support of the recipient spouse by when the parties are living separate and apart. This support terminates upon the continued cohabitation of the supported spouse, upon the divorce of the parties, or upon the death of either spouse. It is terminable and modifiable based upon changed circumstances in the future.
- Such other form of spousal support, under terms and conditions as the court may consider just, as appropriate under the circumstances without limitation to grant more than one form of support.
In making a determination for alimony or separate maintenance and support, the court considers and gives weight to all of the following factors:
- 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;
- The physical and emotional condition of each spouse;
- 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;
- The employment history and earning potential of each spouse;
- The standard of living established during the marriage;
- The current and reasonably anticipated earnings of both spouses;
- The current and reasonably anticipated expenses and needs of both spouses;
- The marital and non-marital properties of the parties, including those apportioned to him/her in the divorce or separate maintenance action;
- 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;
- 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;
- The tax consequences to each party as a result of the particular form of support awarded;
- The existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
- Any other factors the court considers relevant.
Child Custody and Support
In any action for divorce from the bonds of matrimony, the court may at any stage of the cause, or from time to time after final judgment, make such orders touching the care, custody and maintenance of the children of the marriage and what, if any, security shall be given for the same 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 may be fit, equitable and just.
In determining the best interests of the child, the court must consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference.
Consideration is also given to the religious faith of the child and any evidence of physical or sexual abuse.
A husband or wife declared to be chargeable with the support of his/her spouse and children, if possessed of sufficient means or able to earn such means, may be required to pay for their support a fair and reasonable sum according to his/her means, as may be determined by the court.
The Office of Child Support Enforcement shall promulgate regulations which establish guidelines for minimum contributions which must be applied by the courts in determining the amount that an absent parent is expected to pay toward the support of a dependent child. The guidelines are based on an Income Shares Model.
In any proceeding for the award of child support, the court will presume that the amount which results from the application of the South Carolina child support guidelines is the correct amount to be awarded, unless there is a showing that the application of the guidelines in a particular case would be unjust or inappropriate.
The court will consider the following factors which may be possible reasons for deviation from the guidelines:
- Educational expenses for the child(ren) or the spouse, to include those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where ther is tuition or related costs;
- Equitable distribution of property;
- Consumer debts;
- Families with more than six children;
- Unreimbursed extraordinary medical or dental expenses for the non-custodial or custodial parent;
- Mandatory deduction of retirement pensions and union fees;
- Support obligations for other dependents living with the non-custodial parent or non-court ordered child support from another relationship;
- Child-related unreimbursed extraordinary medical expenses;
- Monthly fixed payments imposed by a court or operation of law;
- Significant available income of the child(ren);
- Substantial disparity of income in which the noncustodial parent's income is significantly less than the custodial parent's income, thus making it financially impractical to pay what the guidelines indicate the noncustodial parent should pay;
- Alimony, because of their unique nature, lump sum, rehabilitative, reimbursement, or any other alimony that the court may award, may be considered by the court as a possible reason for deviation from these guidelines; and
- Agreements reached between parties.
South Carolina does not have legal separations which courts can grant. Instead, couples may obtain orders of Separate Maintenance and Support. These orders establish formal arrangements, detailing the responsibility of each spouse, and ordered by a court.
To obtain an order of Separate Maintenance and Support, the Plaintiff must file a Summons and Complaint in Family court stating that the parties live separate and apart and that he/she wants the order. The Summons and Complaint must be served on the Defendant.
The Family Court may review and approve all agreements regarding alimony or separate maintenance and support, whether brought before the court in actions for divorce from the bonds of matrimony, separate maintenance and support actions, or in actions to approve agreement where the parties are living separate and apart.
The failure to seek a divorce, separate maintenance, or a legal separation does not deprive the court of its authority and jurisdiction to approve and enforce the agreements. The parties may agree in writing if properly approved by the court to make the payment of alimony, as set forth in statutes, as non-modifiable and not subject to subsequent modification by the court.