For help from a divorce lawyer in South Carolina, call Greenville Family Law today.
Divorce Based on Fault
There are four fault-based grounds for divorce recognized in South Carolina. These are adultery, physical cruelty, desertion and habitual drunkenness/drug abuse. Years ago all divorces had to cite one of these fault-based grounds, today they are much more uncommon. That’s because there is now a no-fault basis for divorce in South Carolina.
The fifth ground for divorce in South Carolina is living separate and apart for one year without cohabitation. Those who cite this as the basis for their divorce are seen as filing a no-fault divorce, because no one party is blamed for the demise of the marriage. An experienced divorce lawyer knows that this has become increasingly the way that most divorces are handled, given the ease of a no-fault divorce and the benefit of not having to drag your former spouse through the mud.
Does fault impact the Divorce?
Though no-fault is a common approach to divorce in South Carolina and across the country, there are circumstances where fault can play an important role. For example, in South Carolina, fault by either party can impact both equitable distribution of property, the awarding of spousal support and maintenance, and custody issues.
Regarding equitable division, our Greenville divorce attorneys know that an affair can have an impact if a judge believes that the affair deprived resources from the family. For instance, if a husband had a girlfriend and lavished her with expensive trips and diamond rings, when it comes time to divide the couple’s assets, the judge may give the wife more than she would otherwise receive to make up for the loss of marital money spent on the affair.
In terms of alimony, adultery can have a critical impact. This is because in South Carolina adultery serves as a bar to the receipt of alimony. That means if a woman leaves her husband after an affair, she will be prohibited from then asking for an alimony award during the divorce.
Does your spouse have to agree to a Divorce?
Though most couples often agree when it is time to end a marriage, this isn’t always the case. It can happen that one person is unhappy and ready to move on while another is blissfully unaware of the brewing storm. In this case, can the one spouse not ready to divorce derail the whole case? No. A qualified Greenville divorce lawyer will know that in South Carolina your spouse is not able to stop you from obtaining a divorce. That being said, an intransigent spouse can be a serious roadblock to a successful and speedy divorce. If they refuse and drag their feet, they can slow down the process and likely make it much more expensive, but they cannot outright prevent it from happening.
The law in South Carolina is clear that before a person can file for divorce, he or she must be a resident of the state for at least one year prior to filing the paperwork if his or her spouse is not a resident of the state. If the plaintiff is a nonresident, then the defendant must have resided in the state for at least one year prior to filing for the divorce. A divorce lawyer would advise that in those cases where both parties are residents of South Carolina, the plaintiff needs only have resided in the state for three month prior to filing.
Where to file for Divorce
A divorce must take place in either the county in which the defendant resides, the county in which the plaintiff resides, if the defendant is a nonresident, or the county in which the parties last resided together. Our divorce lawyers recognize that the only exception is if the plaintiff is a nonresident, in which case, the divorce must take place in the county where the defendant resides.
Separate vs. Marital Property
Our professional divorce attorneys will inform you that in a divorce it is important to understand the difference between separate and marital property given that the two are treated very differently under the law. Separate property includes those items that a person brought into a marriage. For instance, if you owned a piece of jewelry or a painting prior to your marriage, that will then be deemed your separate property. Separate property is not subject to equitable division, meaning you will be able to walk away from a divorce with your separate property all to yourself, not having to divide it or compensate your spouse for its value. Inheritance and gifts to one person are also non-marital property if kept separate from the spouse.
Marital property, on the other hand, is subject to equitable division. Marital property includes those things that were acquired during the course of your marriage. A good divorce lawyers recognizes that something that surprises many people is that marital property could be in only one person’s name, but still be considered a joint asset. For instance, if a wife goes out and buys a new car, putting it solely in her name, it can still be considered a marital asset because it was acquired during the course of the marriage.
All marital property and debt acquired during the course of the marriage must be divided once the marriage ends. This means drawing up a list of all bank accounts, retirement accounts, investment funds, personal items of property, real estate and, unfortunately, debts, and then divvying things up. The goal of equitable division is fairness, not necessarily strict equality. This means that one person may walk away with slightly more or slightly less than fifty percent of the marital assets; a qualified divorce lawyer knows that there’s no guarantee of a strict 50/50 split.
What about Gifts and Inheritance?
Outside of custody issues, our divorce lawyers recognize that property division is one of the most challenging parts of the divorce process. Understanding how certain categories of assets are divided can be especially confusing, so let’s spend a brief moment discussing what happens with gifts and inheritance.
When you divorce in South Carolina you typically get to keep any gift or inheritance you received during the course of the marriage, unless the person who gave you the gift is your spouse. A seasoned divorce attorney will know this is because gifts and inheritance are deemed separate property. The only trick is if your spouse argues that the gift was given to them as well, such as a joint gift by your parents to both you and your spouse at a holiday. If this happens, it is up to you to convince a judge that your relative intended to give the gift to you alone.
Gifts given between spouses, known as interspousal gifts, are typically considered an exchange of marital assets. That means that they can technically be divided in a divorce. This is true even if only one spouse’s name is on the gift. So if you buy your spouse a car during the marriage and put his or her name on the title, that car can still be considered a marital asset and subject to division during the divorce.
How long does Divorce take?
An experienced divorce attorney will know that the length of the divorce depends on a multitude of factors, including the complexity of the case, the jurisdiction your case was filed in, the financial amount at stake, whether children and custody determinations are required and, most important of all, your relationship with your spouse.
Though it can be hard for some people to understand, especially when in the midst of a painful divorce, the couple largely determines the direction, intensity and duration of a divorce. It’s the husband and wife that dictate the degree of work attorneys do and what motions are filed (or not).
If you are determined to drag out the divorce, either because you aren’t ready to leave your spouse or because you’re angry and want to punish him or her, you can do it. If you and your spouse refuse to cooperate and stake out diametrically opposite positions on every issue in your divorce, that’s another way to guarantee a lengthy ordeal. In these kinds of cases, a year or more is not at all uncommon.
That being said, if you and your spouse intend to divorce speedily and with as little fuss as possible, that can also happen. In these cases, divorce may only take several months from start to finish. The choice is almost always yours.
To set up a meeting with a divorce lawyer in Greenville, SC, call 864-729-3900.