Frequently Asked Questions:

• How long does it take to get a divorce in South Carolina?

That depends. To obtain a divorce on no-fault grounds, you and your spouse must have been separated for over one year (i.e., have not lived under the same roof for one year). You can take steps to protect yourself before the year has expired by filing an action for Separate Support and Maintenance. If fault grounds can be established, your divorce can be finalized three months after filing (subject to court availability).

• I just left my spouse, and no one was at fault. Is there anything I can do to protect myself before we have been separated for a year?

Yes, you may file for Separate Support and Maintenance. Because it often takes a year to be divorced, South Carolina has established a means by which the husband and wife can establish their legal rights and responsibilities as to one another after their separate. Although South Carolina does not recognize 'a legal separation' per se, the parties can apply to the court for a temporary determination as to custody, visitation, child support, use of the marital home, and other immediate issues that require a resolution before the divorce is ripe for determination. After separating, the parties can also enter into an agreement resolving the above-referenced issues and apply to the court to have the agreement approved and made an order of the court.

• My spouse and I are still together in our home, but I want to leave. Is there anything I can do legally?

South Carolina permits a Husband/Wife to file for divorce on "default" grounds while the parties still live under the same roof. However, filing for divorce while still living with your spouse is generally not recommended, as the existence of marital litigation will not improve the already strained condition of the marriage. Accordingly, it is often best for one party to leave the home before filing on "default" grounds. If there are no fault grounds, the parties generally need to separate before filing for "separate support and maintenance." However, this issue is unclear in South Carolina law, and it is possible that a court may allow a party to file on no-fault grounds while still residing with his/her spouse.

• What is standard visitation? How can I get more than just standard visitation?

Standard visitation refers to a visitation schedule for the non-custodial parent of every other weekend (generally from 6:00 p.m. Friday to 6:00 p.m. Sunday), 4 weeks in the summer, and alternating holidays. It is within the court's discretion to award more than "standard visitation." The moving party should specifically make a request for greater visitation. The parties may also agree to a visitation schedule that permits the non-custodial parent more than "standard visitation."

• How is child support calculated?

The amount of child support a non-custodial parent will be required to pay is governed by the South Carolina Child Support Guidelines. These guidelines take into consideration each parent's gross income, the cost of day care, the existence of other children in the home, and the cost of medical insurance and extraordinary medical expenses, among other factors. The court is authorized to consider a wide range of factors and may deviate from the guidelines under certain circumstances.

• My former spouse hasn't paid child support for months/years? Is there anything I can do?

Yes. If there is an existing support order in place, you may file a Rule to Show Cause with the Court and ask the court to compel the mother/father to pay the past due support and for other remedies as permitted by law (fines, jail time, payment of attorney's fees, etc.). If there is no support order in place, you may file an action with the Family Court to establish a support order. You may also request retroactive (back) child support for the period of time before the order was in place.

• My children plan to go to college in a few years? Will my spouse be required to share in the cost of college?

A parent's obligation to pay child support generally terminates when the child reaches the age of 18 or graduates high school. However, a court can order that one or both parents pay for educational expenses past high school. Alternatively, the parents may enter into an agreement to pay for college expenses and request that the Court enforce the agreement.

• What constitutes adultery? What level of proof is required?

Adultery is "the illicit intercourse between two persons, one of whom, at least, is married." Illicit intercourse does not require actual intercourse as it is generally defined; however, there must be proof of some "sexual intimacy" to make a case for adultery. Adultery can be established through proof of inclination and opportunity to commit adultery, and generally, the moving party must present sufficient evidence of the time and place of the alleged adulterous act. A court will analyze the proof presented on a case by case basis.

• My spouse and I argue constantly, and I believe he/she is mentally abusive? Is mental cruelty a ground?

Mental cruelty, without an accompanying physical act, is not a ground for divorce.

• My spouse left me and the kids without any warning? Can I argue desertion?

Yes. However, because SC permits a divorce on the grounds of one-year continuous separation, this ground is not often pursued. The elements of desertion are: * Cessation from cohabitation for one year * Intent of the absent party not to resume cohabitation * Absence of consent * Absence of justification for the cessation.

• My spouse drinks regularly. Can I make a case for habitual drunkness?

There is no clear definition of habitual drunkenness, in terms of how much alcohol one must consume and how often he/she must consume it to establish this ground. However, the Supreme Court has stated that habitual drunkenness is "the fixed habit of frequently getting drunk; but it does not necessarily imply continual drunkenness." The drunkenness must also have caused the breakdown of the marriage. A court will consider the individual facts and circumstances of the case in determining if a divorce on the grounds of habitual drunkenness is warranted.

• My spouse and I have been sleeping in separate rooms for years. Does that count as living separate and apart?

No. Spouses are not living "separate and apart" if they reside in the same house.

Definitions:

Guardian ad litem – an individual (attorney or lay person) who is appointed by the court to represent the interests of the minor child, to investigate the case, and to report to the court on his/her findings