Frequently Asked Questions
What are the grounds for divorce in South Carolina?
There are four different fault grounds for divorce in South Carolina: physical cruelty, adultery, habitual drunkenness/drug abuse and desertion. There is also a fifth ground that is considered to be “no-fault” and that is called living separate and apart for at least one year without cohabitation before the filing of your action.
What is separation?
Normally a separation occurs when the parties are living in two different locations. Habitation in two different rooms of the same house does not qualify as a separation. Your separation does not begin until you are living in two different locations.
Will the Court make my spouse leave the marital home?
A Family Court Judge is unlikely to order a person out of their home unless there is fault involved. If you have proof that your spouse has committed adultery, abused you or has a drug or alcohol issue that is impacting your marriage, a judge may order that spouse to leave. If there is no fault, you will have to leave to start the separation. Once you leave the home and start the separation, a judge could order you back into the home and for your spouse to leave.
Where do I file for divorce?
If you are looking to file for divorce or a separate maintenance and support action, your case should be filed in the county in which you last lived with your spouse or the county in which your spouse now resides. Since the Family Courts have exclusive jurisdiction over any divorce suits in the state of South Carolina, you must file in the Family Court. Each of the state’s 36 counties has a Family Court. If your spouse does not live in South Carolina, you may file suit in the county where you live.
Can my spouse and I use the same attorney?
South Carolina’s Rules of Professional Conduct prohibit one lawyer from representing two opposing parties. Regardless of how amicable the divorce may be, one attorney may not represent both parties. However both parties can hire one attorney to act as a mediator. This attorney/mediator cannot give legal advice to either party but can assist both parties in reaching a reasonable solution to their Family Court disputes. These solutions can be made into a Settlement Agreement and be presented to a court that can approve and make your Settlement Agreement legally binding. This is often the most economical way to move through the process. However, your mediator cannot represent you in Family Court.
What is the difference between mediation and arbitration?
Mediation and arbitration are tools of negotiation that use a neutral third party to help reach a settlement without the use of litigation.
Mediation makes use the neutral as a “mediator”. The mediator will hear from both parties on each issue. The mediator will then assist the parties in reaching a resolution to each dispute. In mediation, there is no regulation that binds the parties or the mediator to reach a result or settlement. Therefore, the use of a mediator could result in some issues being resolved, all of the issues being resolved or walking away without having any of the issues resolved. Mediation is non-binding. Mediators are trained individuals who should have a background in the area of the law in which they are mediating. For example, a family court issue should be mediated by a mediator that has practiced in family law for years.
Arbitration, unlike mediation, is binding. As with mediation, the neutral third party should have an extensive background in the family court arena. The process may look like the mediation process but they are very different. In Arbitration, after the issues have been presented to the arbitrator, the neutral will make a final binding decision on each issue. This decision will be put in writing in a document called an arbitration award which will be filed with the Family Court and become enforceable in the Family Court. The award may only be appealed in incredibly limiting situations.
Mediation and Arbitration are often used in conjunction with each other and can be helpful in almost all types of family law cases. They are also becoming more acceptable to occur pre-suit rather than waiting for a judge to accept an order for mediation and arbitration.
What is cooperative law?
Cooperative Law is a description used by many to describe a Family Court process where the parties and their attorney’s work together to solve all the issues in the case amicably. They use joint experts and work each issue out using litigation only as a last resort. This is the way most good attorneys practice in most every Family Court case. It saves their client’s money, time and minimizes heartache. There are a group of like-minded attorneys that practice family law in this fashion in as effort to minimize the impact of the process on their clients and their client’s children.
How is the Juvenile system different from the adult criminal system?
Juveniles are never found guilty of a crime but rather they are adjudicated delinquent. The Juvenile system is not meant to punish the children but rather to help them learn from their mistakes and rehabilitate them.