Why you need a family law or divorce attorney
There are many reasons why it is so important to hire a family law attorney. First, you need the comfort of knowing that you are relying on an expert’s advice. The divorce process is complex and totally foreign to those who have not experienced it. Your family law attorney will already understand the ins and outs of the process and be equipped to advocate on your behalf along the way, ensuring that the ultimate result is fair and in your best interest. Attorneys are also better able to avoid costly mistakes that can occur when someone unfamiliar with the process handles the case.
Another major benefit to hiring a divorce attorney is a reduction in stress. Rather than take on the burden of managing a complicated case by yourself, you can leave the work in the hands of your lawyer. Rather than have to negotiate with your former spouse on your own, you can just leave it to your family lawyer. Divorce is stressful enough as it is; handling everything on your own succeeds only in increasing the difficulty of the whole process.
Let’s now walk through the typical steps you will encounter in a divorce proceeding:
Steps in a divorce case
The first phase of any divorce is typically a separation. Though some states allow for a legal separation, others don’t. Regardless of the formality of the separation, it is almost always true that unhappy couples intending to divorce separate from one another, either living in separate bedrooms or separate houses altogether. This is the time that couples begin the process of dividing property and living on their own and it can be emotionally (and financially) trying as a result.
Petition for divorce
To formally begin the divorce process, someone needs to file the petition for divorce. This document is filed with your local court clerk and identifies the parties in the divorce, any children of the marriage and lays out the issue that need to be decided. In the petition you will need to state the reason for the divorce, typically this will be a no fault basis given the popularity of this approach.
The petition for divorce needs to be served on the other party, known as the respondent. After that, the respondent will typically have 30 days to hire an attorney and craft a response to the petition.
Once the petition has been filed and the other party notified, the court presiding over the case can issue temporary orders that will dictate you and your spouse’s behavior during the remainder of the court proceeding. These temporary orders can concern things such as interim child support, spousal support and custody arrangements. Though these are temporary arrangements, they have the full authority of any legal pronouncement and violating the terms of these orders can land you in serious trouble.
The discovery process is the stage at which the two sides collect the information they need to make informed decisions about the case. Discovery includes disclosing information to the other sides, including financial records and any other relevant information. Typically, both sides will ask the other to answer interrogatory questions, and admissions of fact. In cases where certain records are needed, requests for production may also be filed. Finally, depositions can be an important component of the discovery process, but do not necessarily occur in every divorce case.
Once the information has been gathered, the two sides either move on to court, presenting their information to the judge and allowing him or her to decide their fate, or they begin the negotiation process in an attempt to settle the matter out of court. This stage in the process can be quite tense as the two sides battle it out over important issues such as money and children.
Finally, either the judge or the two parties reach a final decree. This final decree settles all the issues involved in the divorce and needs to clearly lay out who has responsibility for what going forward. Custody schedules should be nailed down with specificity and financial matters should be clearly explained so as to avoid uncertainty and future challenges. The more detailed the settlement agreement is, the less chance of a problem down the road due to vague or ambiguous wording.
Basis for Divorce
There are five grounds for divorce in South Carolina. They are written in S.C. Code § 20-3-10. Four of these five grounds are considered “fault” grounds: adultery, habitual drunkenness (or narcotics abuse), physical cruelty, and one year’s desertion. The fifth ground, one year’s separation is the “no-fault” ground. Unlike some other states, South Carolina does not recognize “mental cruelty” or “irreconcilable differences” as grounds for divorce.
In order to obtain a divorce on the ground of adultery, no physical proof of actual adultery needs to be shown. Instead, a party can prove adultery by relying on circumstantial evidence. Relying on private investigators to help come up with evidence of affairs is a common avenue for achieving this result.
To get a divorce on grounds of physical cruelty, you must prove that there has either been one serious incident of physical abuse or that there were multiple incidents of less serious abuse. Serious usually means that medical attention has been required. You do not need to prove physical injuries resulted, but you will need to show that there is a genuine risk of death or serious harm.
For divorce based on habitual intoxication or narcotics use, you will need to prove more than that your spouse drinks or has done drugs in the past. You will need to do more, showing that this use is frequent and has led to a breakdown in the marriage. This is usually demonstrated by reliance on medical records or criminal records.
What’s a no-fault divorce?
Though there are options for fault based divorce, and these are still occasionally used, “no fault” divorce has become far more popular. No fault describes any divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong. This used to rare, but now all states allow no fault divorces.
To get a no fault divorce, one person must simply state a reason for the divorce that is recognized by the state. In most states, it is usually sufficient to say that the couple cannot get along. The benefit of this is clear, rather than have to drag your spouse through the mud, accusing them of infidelity or abuse, the parties can simply agree that the marriage is broken and move on.
Community property vs. equitable distribution
Most states, including South Carolina, follow what are known as equitable distribution laws. In these states, property acquired during the marriage belongs to the spouse who earned it. In case of divorce, the property will be divided between the spouses in a fair and equitable manner. Though the term used is equitable, it is important to note that the laws do not require the division be equal. There are no defined laws for dividing property. Instead, courts will look to do so in a fair way, taking into account a variety of factors including the earnings of both spouses, the contribution made by a stay-at-home spouse as well as future earning potential.
In community property states, the spouses are deemed to equally own all income and assets earned or acquired during the marriage. This means that both the husband and wife are said to equally own all money earned by either one of them during the marriage, even if only one spouse is employed. In addition, all property acquired during the marriage with joint or communal money is said to be owned equally by both the wife and husband, regardless of who purchased it. Community property laws exist in the following states: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
How is child support determined?
Child support used to be a far more complicated issue than it is today, with couples battling it out over how much they believed the kids were costing and who ought to be responsible for it. Today, it is far more common for child support matters to be decided without argument, and that is because of the reliance on guidelines, essentially a formula, used to calculate the numbers for both parents. The guidelines take into account an array of factors, including income, expenses and custody time to divide the costs associated with the kids between the two parents.
What factors are considered in child custody decisions?
Custody is discussed in South Carolina Code 63-15-240. The law lays out a list of issues to be considered by courts when deciding custody arrangement. The very first factor that can be considered by a court is the temperament and developmental needs of the child. Courts are also required to consider the ability of the parents to understand and accommodate these needs. In conjunction with this, it is important to understand that the preferences of the child and the parents are also considered, though judges can give these preferences varying weight depending on the specific circumstances.
Past behavior also plays a role in determining custody arrangements, and the law provides that previous interactions between the child and the parents, siblings, and any other person can also be considered if that interaction impacts the best interest of the child for whom custody is being decided. This includes bad behavior and other forms of misconduct, such as alienation, manipulation, coercion, or negative actions toward the other parent, which can all be considered and often harms a parent’s attempt to gain custody.
Mental and physical health issues can also come into play, with one major exception. The law makes it clear that the disabilities of a parent cannot be a determining factor in deciding custody, unless the arrangement itself would not be in the best interest of the child.
Other factors that a court can consider include a child’s cultural/spiritual background, whether the child has ever been abused or neglected, whether one parent has ever been violent or abusive, to the child or to anyone else, and whether one parent chose to move more than 100 miles away from the child. The final factor is very vague and says simply that courts can consider such “other factors” as necessary.
How long will a divorce case take?
This is one of the most common questions in a divorce case, but sadly, one of the most difficult to answer. The reason is that the length of a divorce case depends almost entirely on the specific facts of each case. If the parties involved are incredibly hostile and set on fighting over every last detail, a divorce could stretch on for a year or even much longer. If, on the other hand, a couple is reasonably cooperative and interested in working together to reach a fair settlement, the divorce could be finished in several months. Remember that you control the ultimate fate of your divorce. If you want to fight and drag things out, you can, understanding that this will cost you. If you want to work together and speed the process along, you can do that as well.
Contact a Laurens Family & Divorce Attorney
If you find yourself in need of family law advice, contact Laurens SC Family Law & Divorce Attorney William Mayer at 864-984-9202