Divorce Attorney
Experienced Divorce Lawyer Guiding You Through Every Step of the Process
Table of Contents
Frequently Asked Questions About Divorce
How do I institute divorce proceedings while living with my spouse?
In South Carolina, you must be able to prove a fault ground for divorce to file a case for divorce while living with your spouse. A fault ground for divorce is adultery, habitual use of alcohol or drugs, physical cruelty, or desertion. If you cannot prove any of these grounds, you cannot file a case for divorce while living with your spouse.
What happens if I cannot prove a fault ground for divorce, what do I do then?
The only way to institute legal proceedings against your spouse if you cannot prove a fault ground for divorce is to move out of the marital home and to file an action seeking separate support and maintenance. It is not recommended that you make any moves before seeking the advice of appropriate legal counsel.
My spouse left the home with or without my knowledge? Can I get him or her for abandonment?
There is no such thing as abandonment in South Carolina. As noted, it is important that you seek appropriate legal counsel prior to making any decision to leave the marital home.
Why You Need a Divorce Lawyer
Unfortunately, not all matters can be settled amicably. When you and your spouse do not see eye to eye, litigation is necessary, and we proactively protect our clients’ interests through an aggressive yet practical approach.
Incumbent in any litigated divorce is controversy over alimony, child custody, visitation, division of assets and debts, restraining orders regarding disposition of marital assets and personal contact, attorney fees and costs and professional fees and costs if experts are engaged.
Also incumbent in any litigated divorce is whether a fault ground for divorce exists. This is important because South Carolina recognizes that where a party is at fault for the breakdown of the marriage, this can contribute to adverse financial or custodial findings against that party. It can also mean the court can remove the offending spouse from the marital home.
Our Divorce Legal Services
South Carolina recognizes adultery, physical cruelty, habitual drunkenness or drug use, and desertion as grounds for divorce. A no fault divorce simply means that the parties have been living separate and apart for at least one year.
Should you be able to successfully prove a fault ground for divorce at an initial temporary hearing, this can result in the court issuing an order removing the offending party from the marital residence during the initial stages of the case. It can also result in an award of attorney fees and costs or other professional fees and costs against the offending party.
A contested action for divorce does not only involve a ground for divorce. It involves child related issues such as custody, visitation, and child support, division of your assets and debt, alimony or other spousal support, attorney fees and professional fees and costs, and other related issues. Therefore, your typical divorce case will involve some or all these issues that may be litigated requiring that the court rule on these issues during various hearings in your case.
In other words, you will not be granted a divorce without all these other issues being resolved either through an agreement that both parties execute and submit for approval by the court, or that the court makes a final determination on at a final hearing.
The Divorce Process Explained
The first and most important hearing that you must be prepared for is the Temporary Hearing which is typically scheduled between 30 and 45 days from when you file your case absent emergency circumstances.
The Temporary Hearing requires significant time and attention to prepare Affidavits, Financial Declarations, exhibits, and potentially other written materials for the court’s consideration. Typically, there is no live testimony at a Temporary Hearing. All testimony is accomplished through your Affidavits and supporting documents.
Affidavits are sworn written statements of the Client and any supporting witnesses concerning the important issues of your case. Financial Declarations are sworn documents evidencing your monthly income, expenses, and assets and debts of the marriage.
Based upon the information submitted, a judge reviews the information and may listen to arguments of your and opposing counsel prior to issuing a ruling in your case. The ruling is then converted into a Temporary Order which is signed by the judge and filed with the Clerk’s office. Once the Order is issued, you and your spouse will live by this Order for the entirety of the case unless modified by another Order. The only way an original Temporary Order can be modified is by another hearing. Generally, the only way to have another hearing is if there is a change of circumstances since the first order was issued.
Temporary Hearings set the tone for your case so that sufficient and timely preparation is necessary to ensure best results.
After the Temporary Hearing, the discovery phase of the case ensues whereby written discovery and subpoenas are issued seeking financial and other supporting evidence to benefit your case or to disprove the other party’s allegations or sworn statements.
The discovery process is document intensive, and each party is typically required to obtain and turn over information concerning assets or debts or the claims by each party. These are called Requests for Production. Each party is also required to answer certain questions posed to the other. These are called Interrogatories.
During the case, the opposing party may be uncooperative in turning over financial and other records resulting in the need for a hearing, which is called a Motion to Compel in South Carolina to address their lack of cooperation. You can seek attorney fees and costs you have incurred as part of your relief.
The opposing party may continue to violate specific provisions of your Order necessitating the need to enforce the provisions of the Order to rectify past violations and to prevent future ones. This could include failure to pay court ordered support obligations, proven exposure of your child(ren) to a paramour, or other obligations he or she has failed to perform.
If the case is contested, mediation is a requirement in all contested cases before the matter ever goes to trial. Mediation is a process whereby a neutral third party is appointed to conduct the process. The mediator could be a retired judge or an attorney certified as a mediator who attempts to resolve all issues between you and your spouse. Each party and their respective counsel are also present, but in separate rooms.
The mediator will be informed of all issues of the case because he or she will be provided copies of all pertinent filings and other materials prepared in your case.
Mediation is generally very successful, and most cases do settle at mediation. A good mediator will not only be well read on the issues presented but can connect with the parties and assess the risks and benefits of your case.
In the event your case does not settle, it must be prepared for trial. Trial is held before a judge and requires the attendance of the parties, counsel and any live witnesses who will be testifying in the case. Direct examination and cross examination of the witnesses takes place, and exhibits must be prepared and entered into evidence.
The judge will make the ultimate determination of the division of your assets, what, if any support is paid, which parent obtains custody of the child(ren), what the visitation schedule will be, and related decisions that are left up for the court’s determination. A trial is a final determination of all pending matters in your case, meaning there are no more hearings after your trial. The ruling from the court after the trial concludes is the black letter law of your familial situation that must be followed once converted to a court order. The only way to modify the final order is through an appeal or through a modification action.
Asset Division in Divorce
All assets and debt acquired during your marriage are generally considered marital and are subject to the court’s division. Exceptions to marital assets are those acquired by gift or inheritance that are kept separate and not deposited into a marital account or otherwise used to support the marriage. Nonmarital assets could also be those earned prior to the date of marriage, such as retirement earned prior to marriage.
Generally, the court will divide all marital assets and debt 50/50, meaning values will be determined for most assets and debt as of the date your case was filed and divided equally among you and your spouse. Some assets that are influenced by market fluctuation, such as investment accounts, will be valued as of the date of the final hearing.
The court can and will divide assets with a spouse receiving less than 50 percent of the marital estate if you can prove marital waste, such as your spouse wasting income or assets on gambling, drugs, or other addictions, or incurring significant debt for purposes having nothing to do with the marriage. Also, a factor the court can consider is each party’s direct and indirect contributions to the marriage. If you have a spouse who did not work and did little around the home, this may affect whether he or she receives 50 percent of the marital estate.
For high asset and complex marital estates involving divorce, a centerpiece of these cases is to determine and value marital assets. Your spouse may try to hide assets by transferring money contained in accounts to third parties or other accounts that may seem untraceable. There may be assets such as restricted stock that were acquired during the marriage that must be valued and apportioned. In these cases, a forensic certified public accountant is a financial expert utilized to find hidden assets and to determine values of these assets.
It is essential to find and be able to properly value all assets for an appropriate division of the marital estate to take place. These types of cases can be document and discovery intensive.
Filing for Divorce
Sometimes the timing of filing an action for divorce is not something that should be done right away. Rather, additional evidence gathering is necessary to obtain the best possible outcome for you at an initial hearing.
In other situations, an immediate filing is necessary to protect your interests or those of your children.
Each case may require a different approach.
Trial and Final Decree
At conclusion of your trial, the trial judge will make the final decision as to whether a ground for divorce has been proven, the division of your assets and debts, the custody and visitation arrangement for your children, who is required to pay alimony or child support and the amount for each, whether attorney fees and costs are awarded, and the outcome of any other requested relief.
The trial judge’s decision will be converted into a Final Decree or Order which is a judgment that must be filed with the Clerk of Court of the County in which your case is pending. The terms of that Order or Decree are what the parties are to abide by moving forward. The Order remains the judgment of your case unless otherwise modified through a post-trial motion, an appeal, or modification action.
How We Protect Your Rights and Interests
The work we do for our clients is impacted by the open level of communication with you. We rely on information from our clients to guide our approach to many situations. We are a proactive firm and aggressively advocate our clients’ interests but also taking into consideration your goals and desires.
Ready to get started?
My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.