Frequently Asked Questions
At Warner Law, we understand how important your family is to you and how difficult it
can be to handle family law matters independently.
Frequently Asked Questions
WHAT ARE THE GROUNDS FOR DIVORCE IN SC?
SC recognizes adultery, physical cruelty, habitual drunkenness or drug use, desertion, or one-year continuous separation, as grounds for divorce.
CAN I OBTAIN A DIVORCE FROM MY SPOUSE DUE TO EMOTIONAL OR VERBAL ABUSE?
No. South Carolina does not recognize emotional or verbal abuse as a ground for divorce.
CAN I OBTAIN A DIVORCE FROM MY SPOUSE BASED UPON IRRECONCILABLE DIFFERENCES?
No. South Carolina does not recognize irreconcilable differences as a ground for divorce.
CAN MY SPOUSE CLAIM THAT I ABANDONED THE MARRIAGE BY MOVING OUT OF THE MARITAL HOME?
South Carolina does not recognize legal abandonment as a ground for divorce. If there is no fault-based ground for divorce, a spouse must move out of the residence and institute proceedings seeking an order for separate maintenance and support. You should consult with an attorney before making any decision to move out of the marital residence.
HOW IS CHILD SUPPORT DETERMINED?
Child support is determined using the gross monthly incomes of each parent, crediting each parent with the cost of health insurance for your child(ren), and the monthly cost of daycare including during the summer weeks. These numbers are entered into the Child Support Guideline calculator and the resulting number is the total amount of monthly child support to be paid.
DO THE NUMBER OF OVERNIGHTS THE VISITING PARENT RECEIVES AFFECT CHILD SUPPORT?
Yes. The number of overnight visits the noncustodial parent receives does affect the child support obligation. Typically, the greater number of overnight visits to the noncustodial parent will equate to a lower child support payment.
CAN I EXCLUDE MY ESTRANGED SPOUSE FROM MY WILL?
No. South Carolina’s public policy is to protect the marriage and the former spouse. If you are married to your spouse and you pass away, your spouse can make an elective share claim on your estate for up to one-third of the value of your net probate estate even if you excluded your spouse from receiving under your Will. If you are engaged in marital litigation with your spouse at death, your spouse may opt to move forward with his/her claim for equitable division of the marital estate and receive their portion from the marital estate. Your spouse cannot then also make an elective share claim on your estate.
CAN I EXCLUDE MY CHILDREN FROM MY WILL?
Yes. You can exclude your child(ren) from inheriting from your estate. It is important to properly identify all of your children, whether biological or adopted, to clearly define your intentions that you do not desire for your child(ren) to inherit from your estate.
DO MOTHERS ALWAYS OBTAIN CUSTODY OF CHILDREN IN SC?
No. Our law is designed so that both parents walking into a courtroom have an equal opportunity to obtain primary custody of children. However, generally Courts tend to favor Mothers as primary custodial parents over Fathers. However, if a Mother is proven to be unfit, a Father can obtain primary custody of the children.
HOW MUCH ALIMONY WILL I RECEIVE?
There are several factors the Court must consider in determining whether to award alimony to a spouse. Prominent factors that are considered are the length of the marriage, the disparity of incomes between the parties, and the needs of the supported spouse, among others. The amount and length of alimony is left to the discretion of the Judge who hears your case.
WHAT EFFECT DOES MY DIVORCE HAVE ON MY BENEFICIARY DESIGNATIONS?
Absent a court ordered agreement requiring you to do otherwise, a divorce decree or decree of annulment automatically revokes any beneficiary designation nominating your former spouse as beneficiary, such as a life insurance policy, retirement plan, annuity, or transfer on death account. This does not apply to government issued retirement accounts. However, the safer practice is not to rely upon the law alone and to speak with a competent attorney on what you should do as you plan for divorce.
WHAT IS NEEDED TO PROVE THAT MY SPOUSE COMMITTED ADULTERY? WHAT IS THE BENEFIT OF PROVING ADULTERY?
South Carolina recognizes adultery as a ground for divorce. You must be able to prove to a Judge that your spouse committed adultery by demonstrating opportunity and inclination for your spouse to have committed adultery. Opportunity means sufficient time for sexual activity to have occurred, and inclination means the propensity to commit adultery. If adultery is proven, South Carolina law requires an automatic bar to alimony or other support to the supported spouse. There is the potential for an award of attorney fees and other professional fees incurred as a result of the breakdown of the marriage. Fee awards are up to the Judge’s discretion.
CAN I BE CAUGHT IN AN ADULTEROUS RELATIONSHIP AFTER SEPARATING FROM MY SPOUSE?
Yes. South Carolina recognizes adultery as a ground for divorce whether it is the cause for the breakdown of the marriage or whether it occurred after you separated from your spouse.
WHAT ARE THE RESIDENCY REQUIREMENTS IN ORDER TO GET A DIVORCE IN SC?
In South Carolina, so long as both spouses were citizens and residents of South Carolina while married for at least three months prior to filing an action, South Carolina has jurisdiction. If one spouse has remained a citizen and resident of South Carolina for at least one year prior to filing an action for divorce while the other spouse moved outside of the State, South Carolina would have jurisdiction.
IF MY SPOUSE AND I REACH AN AGREEMENT, WHAT ARE THE NEXT STEPS?
Once your agreement has been placed into a formalized document and executed by all parties, a short hearing for the Court to approve your agreement must be requested and held. At the time of the hearing, the Court will ask each party a series of questions and absent extraordinary circumstances, will typically approve your agreement. A Court Order will typically be issued approving your agreement.
I HAVE HEARD THAT I CAN GET A DIVORCE IN 90 DAYS IF I PROVE A FAULT GROUND FOR DIVORCE. IS THIS TRUE?
Not necessarily. While South Carolina law allows for a party to obtain a divorce within 90 days of the filing of the Complaint, the circumstances are not often such that this can typically happen. For instance, if matters concerning property division, custody, or support are still being litigated, it is rare that the Court will grant a spouse a divorce and leave the remaining issues open for determination later. The reason being is that often the ground for divorce affects the disposition of the other litigated matters so that the Court wants to hear all contested issues in making its decision. If you have reached an agreement on all matters concerning your marriage and you can prove a fault-based ground for divorce, then yes, it is possible to obtain a divorce and have your agreement approved in one hearing. However, the scheduling of your hearing is controlled by the docketing clerk at the Court.
WHAT IS A WILL AND WHAT DOES IT DO?
A Will is a written document setting forth the disposition of your probate assets. South Carolina law requires that certain formalities be followed for you to have a valid Will. Your Will is the only document that can provide for the testamentary disposition of your assets, or where you want your assets to go when you pass away.
CAN I USE A POWER OF ATTORNEY AFTER A PERSON DIES?
No. The Power of Attorney terminates at the principal’s death. Once a person dies, you cannot use a Power of Attorney to handle financial affairs on their behalf. Typically, a Certificate of Appointment issued to a Personal Representative of an Estate is used to conduct business on behalf of a decedent.
WHAT IS A PROBATE ASSET AND WHAT IS A NON-PROBATE ASSET?
A probate asset is an asset that is disposed of by Will. A non-probate asset is an asset that has a beneficiary designation, such as a life insurance policy, retirement account, annuity, or a jointly titled bank account. These assets go directly to the beneficiary named on the designation form and do not require a Will to dispose of the asset.
SHOULD I AVOID PROBATE?
Probating an estate is not as bad as is made out to be. It is a process that allows the Probate Court to monitor and ensure that your estate assets are disposed of in the manner which you intended through your Will or in accordance with State law. There are court ordered fees that must be paid depending upon the value of your estate. There is a creditor’s claim period that requires that your estate remain open for several months to ensure that any potential creditor claims are filed and handled appropriately. While there are other legitimate reasons many people wish to avoid probate, it is not a one size that fits all situation.
WHAT HAPPENS IF I DO NOT HAVE A WILL?
South Carolina provides for disposition of probate assets should you not have a Will at death. If you are married and have biological or adopted children, one-half of your probate estate will be distributed to your surviving spouse and the other one-half will be distributed to your children equally. If you pass away without children, your estate will be distributed to your surviving spouse. If you have no spouse or children at death, law requires that your next of kin starting with surviving parents, then siblings and siblings’ children receive from your estate.
Appeal:
An application to an appellate court from the lower court by way of briefs and supporting documentary evidence that was presented to the lower court. The purpose of an appeal is to overturn the lower court’s decision on certain issues.
Can I obtain a divorce from my spouse due to emotional or verbal abuse?
No. South Carolina does not recognize emotional or verbal abuse as a ground for divorce.
Can I obtain a divorce from my spouse based upon irreconcilable differences?
No. South Carolina does not recognize irreconcilable differences as a ground for divorce.
Can my spouse claim that I abandoned the marriage by moving out of the marital home?
South Carolina does not recognize legal abandonment as a ground for divorce. If there is no fault-based ground for divorce, a spouse must move out of the residence and institute proceedings seeking an order for separate maintenance and support. You should consult with an attorney before making any decision to move out of the marital residence.
How is child support determined?
Child support is determined using the gross monthly incomes of each parent, crediting each parent with the cost of health insurance for your child(ren), and the monthly cost of daycare including during the summer weeks. These numbers are entered into the Child Support Guideline calculator and the resulting number is the total amount of monthly child support to be paid.
Do the number of overnights the visiting parent receives affect child support?
Yes. The number of overnight visits the noncustodial parent receives does affect the child support obligation. Typically, the greater number of overnight visits to the noncustodial parent will equate to a lower child support payment.
Can I exclude my estranged spouse from my will?
No. South Carolina’s public policy is to protect the marriage and the former spouse. If you are married to your spouse and you pass away, your spouse can make an elective share claim on your estate for up to one-third of the value of your net probate estate even if you excluded your spouse from receiving under your Will. If you are engaged in marital litigation with your spouse at death, your spouse may opt to move forward with his/her claim for equitable division of the marital estate and receive their portion from the marital estate. Your spouse cannot then also make an elective share claim on your estate.
Can I exclude my children from my will?
Yes. You can exclude your child(ren) from inheriting from your estate. It is important to properly identify all of your children, whether biological or adopted, to clearly define your intentions that you do not desire for your child(ren) to inherit from your estate.
Do mothers always obtain custody of children in SC?
No. Our law is designed so that both parents walking into a courtroom have an equal opportunity to obtain primary custody of children. However, generally Courts tend to favor Mothers as primary custodial parents over Fathers. However, if a Mother is proven to be unfit, a Father can obtain primary custody of the children.
How much alimony will I receive?
There are several factors the Court must consider in determining whether to award alimony to a spouse. Prominent factors that are considered are the length of the marriage, the disparity of incomes between the parties, and the needs of the supported spouse, among others. The amount and length of alimony is left to the discretion of the Judge who hears your case.
What effects does my divorce have on my beneficiary designations?
Absent a court ordered agreement requiring you to do otherwise, a divorce decree or decree of annulment automatically revokes any beneficiary designation nominating your former spouse as beneficiary, such as a life insurance policy, retirement plan, annuity, or transfer on death account. This does not apply to government issued retirement accounts. However, the safer practice is not to rely upon the law alone and to speak with a competent attorney on what you should do as you plan for divorce.
What is needed to prove that my spouse committed adultery? What is the benefit of proving adultery?
South Carolina recognizes adultery as a ground for divorce. You must be able to prove to a Judge that your spouse committed adultery by demonstrating opportunity and inclination for your spouse to have committed adultery. Opportunity means sufficient time for sexual activity to have occurred, and inclination means the propensity to commit adultery. If adultery is proven, South Carolina law requires an automatic bar to alimony or other support to the supported spouse. There is the potential for an award of attorney fees and other professional fees incurred as a result of the breakdown of the marriage. Fee awards are up to the Judge’s discretion.
Can I date after separating from my spouse?
We do not advise anyone to date before they have a Final Decree of Divorce. South Carolina recognizes adultery as a fault ground, even if it occurs after you separate from your spouse.
What are the residency requirements in order to get a divorce in SC?
In South Carolina, so long as both spouses were citizens and residents of South Carolina while married for at least three months prior to filing an action, South Carolina has jurisdiction. If one spouse has remained a citizen and resident of South Carolina for at least one year prior to filing an action for divorce while the other spouse moved outside of the State, South Carolina would have jurisdiction.
If my spouse and I reach an agreement, what are the next steps?
Once your agreement has been placed into a formalized document and executed by all parties, a short hearing for the Court to approve your agreement must be requested and held. At the time of the hearing, the Court will ask each party a series of questions and absent extraordinary circumstances, will typically approve your agreement. A Court Order will typically be issued approving your agreement.
I have heard that I can get a divorce in 90 days if I prove a fault ground for divorce. Is it true?
Not necessarily. While South Carolina law allows for a party to obtain a divorce within 90 days of the filing of the Complaint, the circumstances are not often such that this can typically happen. For instance, if matters concerning property division, custody, or support are still being litigated, it is rare that the Court will grant a spouse a divorce and leave the remaining issues open for determination later. The reason being is that often the ground for divorce affects the disposition of the other litigated matters so that the Court wants to hear all contested issues in making its decision. If you have reached an agreement on all matters concerning your marriage and you can prove a fault-based ground for divorce, then yes, it is possible to obtain a divorce and have your agreement approved in one hearing. However, the scheduling of your hearing is controlled by the docketing clerk at the Court.
What is a will and what does it do?
A Will is a written document setting forth the disposition of your probate assets. South Carolina law requires that certain formalities be followed for you to have a valid Will. Your Will is the only document that can provide for the testamentary disposition of your assets, or where you want your assets to go when you pass away.
Can I use a power of attorney after a person dies?
No. The Power of Attorney terminates at the principal’s death. Once a person dies, you cannot use a Power of Attorney to handle financial affairs on their behalf. Typically, a Certificate of Appointment issued to a Personal Representative of an Estate is used to conduct business on behalf of a decedent.
What is a probate asset and what is a non-probate asset?
A probate asset is an asset that is disposed of by Will. A non-probate asset is an asset that has a beneficiary designation, such as a life insurance policy, retirement account, annuity, or a jointly titled bank account. These assets go directly to the beneficiary named on the designation form and do not require a Will to dispose of the asset.
Should I avoid probate?
Probating an estate is not as bad as is made out to be. It is a process that allows the Probate Court to monitor and ensure that your estate assets are disposed of in the manner which you intended through your Will or in accordance with State law. There are court ordered fees that must be paid depending upon the value of your estate. There is a creditor’s claim period that requires that your estate remain open for several months to ensure that any potential creditor claims are filed and handled appropriately. While there are other legitimate reasons many people wish to avoid probate, it is not a one size that fits all situation.
What happens if I do not have a will?
South Carolina provides for disposition of probate assets should you not have a Will at death. If you are married and have biological or adopted children, one-half of your probate estate will be distributed to your surviving spouse and the other one-half will be distributed to your children equally. If you pass away without children, your estate will be distributed to your surviving spouse. If you have no spouse or children at death, law requires that your next of kin starting with surviving parents, then siblings and siblings’ children receive from your estate.