FAQ

COMMON SENSE, UNCOMMON COUNSEL

  • Personal Injury

    • Statue of Limitations for Personal Injury Cases

      In South Carolina, the general rule is that most cases have a three year statute of limitations:

      “(1) an action upon a contract, obligation, or liability, express or implied, excepting those provided for in Section 15-3-520;

      (2) an action upon a liability created by statute other than a penalty or forfeiture;

      (3) an action for trespass upon or damage to real property;

      (4) an action for taking, detaining, or injuring any goods or chattels including an action for the specific recovery of personal property;

      (5) an action for assault, battery, or any injury to the person or rights of another, not arising on contract and not enumerated by law, and those provided for in

      Section 15-3-545;

      (6) an action under Sections 15-51-10 to 15-51-60 for death by wrongful act, the period to begin to run upon the death of the person on account of whose death the action is brought;

      (7) any action for relief on the ground of fraud in cases which prior to the adoption of the Code of Civil Procedure in 1870 were solely cognizable by the court of chancery, the cause of action in the case not considered to have accrued until the discovery by the aggrieved party of the facts constituting the fraud;

      (8) an action on any policy of insurance, either fire or life, whereby any person or property, resident or situate in this State, may be or may have been insured, or for or on account of any loss arising under the policy, any clause, condition, or limitation contained in the policy to the contrary notwithstanding; and

      (9) an action against directors or stockholders of a monied corporation or a banking association to recover a penalty or forfeiture imposed or to enforce a liability created by law, the cause of action in the case not considered to have accrued until the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached or the liability was created, unless otherwise provided in the law under which the corporation is organized.”

      See S.C. Ann. Code §15-3-530 

      All actions brought “under S.C. Ann. Code §15-3-530(5) must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action.” See S.C. Ann. Code §15-3-535.

      Medical Malpractice actions generally “…must be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence, or as tolled by this section.” However, if the action is for damages because of placement of a foreign object in the body or unintentionally leaving an object in the body, “…the action must be commenced within two years from date of discovery or when it reasonably ought to have been discovered; provided, that, in no event shall there be a limitation on the commencement of the action less than three years after the placement or leaving of the appliance or apparatus.” See S.C. Ann. Code §15-3-545.

      There is a two year statute of limitations for “an action for libel, slander or false imprisonment, and for … an action upon a statute for a forfeiture or penalty to the State. See S.C. Ann. Code §15-3-550.

      For actions based on sexual abuse or incest “…must be commenced within six years after the person becomes twenty-one years of age or within three years from the time of discovery by the person of the injury and the causal relationship between the injury and the sexual abuse or incest, whichever occurs later.” See S.C. Ann. Code §15-3-555.

    • Terms You Should Know

      Here are some terms you need to know if you are involved in civil litigation:

      Affidavit: “A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.”

      Alternative Dispute Resolution: “A process adopted to end a problem before taking legal action.” For example, arbitration and mediation are forms of ADR.”

      Answer: An Answer is “any pleading setting up matters of fact by way of defense.”

      Appeal: “The complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse.”

      Arbitration: “The investigation and determination of a matter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties, and called “arbitrators,” or “referees.””

      Attorney-Client Privilege: “The law requires that an attorney does not reveal any communications or letters between him/her and his/her client to any third party, which includes business associates, competitors, government agencies and even criminal justice authorities. This requirement helps the client to speak with his/her attorney honestly and without a fear that his/her sensitive information will be disclosed.”

      Bodily Injury: “Any physical or corporeal injury; not necessarily restricted to injury to the trunk or main part of the body as distinguished from the head or limbs.”

      Burden of Proof: “The necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.”

      Cause of Action: A Cause of Action is the “…[m]atter for which an action may be brought.”

      Complaint: “In those states having a Code of Civil Procedure, the complaint is the first or initiatory pleading on the part of the plaintiff in a civil action.”

      Contingency Fee: “[A] contingent fee means that the attorney will be paid for his or her work on a case only if money is recovered in that case. In other words, the attorney’s fees are contingent upon a successful outcome in the case.”

      Damages: “A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another.”

      Defective Product: “A commercial good that is not fit for the use, dangerous, or has inadequate instructions.”

      Defendant: “The person defending or denying; the party against whom relief or recovery is sought in an action or suit.”

      Deposition: “Depositions usually are held away from the courthouse in the office of an attorney for the one of the parties. A stenographer is present to take down what is said during the deposition and produce a written transcript of it. Some jurisdictions allow for the video recording of a deposition as long as the attorneys involved in the case agree to it.”

      Discovery: “Discovery is the process by which the parties exchange evidence and information with each other about the case.”

      Docket: The record kept by the clerk of court that lists the cases that are up for a hearing, trial, time for trial or entering orders of continuance, default, and nonsuit.

      Duty: “An obligation arising from contract of the parties or the operation of the law.”

      Emotional Distress: Emotional Distress is a non-economic damage.

      Evidence: Facts entered into the court record that support or deny a claim.

      Expert Witness: “A person that had knowledge and skills learned over years of experience in a subject. Their opinion can be helpful in problem solving.”

      HIPPA: Health Insurance Portability and Accountability Act

      Interrogatories: “[A] series of formal written questions used in the judicial examination of a party or a witness.”

      Jones Act: This is the federal law that regulates maritime commerce in the United States.

      Judgment: “The final determination of the rights of the parties in an action or proceeding.”

      Jury Instructions: “At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.”

      Liability: “Lawful accountability and obligations required due to civil actions or torts, or a contract’s terms.”

      Litigant: “A party to a lawsuit.”

      Litigation: “A contest in a court of justice, for the purpose of enforcing a right.”

      Mediation: The act of a third person who helps two contending parties to persuade them to adjust or settle their dispute.

      Medical Malpractice: “The term to describe the improper or poor performance of a physician, dentist and other medical professionals.”

      Mesothelioma: A type of cancer that is caused by exposure to asbestos.

      Motion: “A motion is a written application for an order addressed to the court by any party to a suit or proceeding, or by any one interested therein.”

      Negligence: There are four elements to a personal injury case: 1) Duty, 2) Breach, 3) Causation, and 4)Damages.

      Negotiation: “The deliberation, discussion, or conference upon the terms of a proposed agreement.”

      Notary Public: “A public officer whose function is to attest and certify, by his hand and official seal, certain classes of documents, in order to give them credit and authenticity in foreign jurisdictions.”

      Proximate Cause: “Also known as direct cause. The result of an direct action and cause of loss to property that sets in motion a chain of events that is unbroken and causes damage, injury and destruction with no other interference. The loss is the result of one event.”

      Request for a Physical or Mental Examination: “In any case in which the amount in controversy exceeds $100,000 actual damages, and the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control.”

      Request for Admission: “A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. ”

      Request for Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes: “Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents, or electronically stored information (including writings, drawings, graphs, charts, photographs, phone records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served;

      or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).”

      Statute of Limitations: “Time frame set by legislation where affected parties need to take action to enforce rights or seek redress after injury or damage.”

      Summary Judgment: “A quick decision of a court based on briefings and affidavits where material facts are not disputed or where the court’s opinion is used for judgment.”

      Testimony: “Evidence given by a witness, under oath or affirmation; as distinguished from evidence derived from writings, and other sources.”

      Tort: “Tort is constantly used as an English word to denote a wrong or wrongful act, for which an action will lie, as distinguished from a contract.”

      Verdict: “The formal and unanimous decision or finding of a jury, impaneled and sworn for the trial of a cause, upon the matters or questions duly submitted to them upon the trial.”

      Voire Dire: “This phrase denotes the preliminary examination which the court may make of one presented as a witness or juror, where his competency, interest, etc., is objected to.”

      Worker’s Compensation: “Financial support provided to an injured worker covering income, medical costs, rehabilitation or death from a work injury.”

    • Timeline of a Personal Injury Case

      Litigation can be confusing so we have prepared a graphic to explain the basics.

  • Divorce

    • Domestic Violence

      Domestic Violence is a real and serious issue.  Unfortunately, in divorce actions both parties use the claim of domestic violence as leverage in getting a divorce and obtaining custody of children.  There has been a rise of abusers using the domestic violence laws against their abused spouse by turning the laws upside down.  These abusers will use domestic violence laws to arrest, prosecute and sentence their partner as an abuser so that they gain control. Check out HANGING ON BY MY FINGERNAILS: SURVIVING THE NEW DIVORCE GAMESMANSHIP, AND HOW A SCRATCH CAN LAND YOU IN JAIL by Janie McQueen.

      In South Carolina, Criminal Domestic Violence is when you

      “(1) cause physical harm or injury to a person’s own household member; or

      (2) offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.”

      S.C. Code Ann. §16-25-20 (A)(1)-(2).

      Actual injury is not a requirement to be convicted of CDV, and an attempt is enough. Once a person is arrested, it is up to the State, not a victim, as to whether or not to prosecute or drop the charges.

      Allegations of Criminal Domestic Violence are serious and can have far reaching consequences. It is not unheard of one spouse calling the police on the other spouse to allege criminal domestic violence in order to get an upper hand in divorce litigation.  It is important that you protect yourself while going through a divorce.

    • Privacy Challenges and Safety
      When going through a divorce, even if you think it will be a “friendly” divorce, it is important that you protect your privacy. In South Carolina, if one person to an in-person conversation or electronic communication, can record it.  Your spouse may record any conversations they have with you.  Make sure you take other precautions to protect your privacy during a divorce. At Klok Law, we recommend that you do not engage in social media while going through a divorce. What you post may seem innocent but in some circumstances, it can be misinterpreted and used against you.  Change your passwords to one you would not normally choose. Your spouse probably knows you well and could guess your new password.  We recommend using a Strong Random Password Generator. Disable any location sharing services on your mobile phone, double check those privacy settings. It just doesn’t happen to celebrities. In the well-publicized divorce of a famous musician power couple, the wife allegedly discovered her husband was cheating on her when she saw explicit texts and nude pictures between her husband and the nanny. Apparently, the family’s iPad and the husband’s phone were linked through iCloud.  We have also seen this happen to couples in our own law practice.
    • South Carolina Annulment

      SOUTH CAROLINA ANNULMENT

      Unlike a divorce, an annulment cancels the marriage. While divorce is a remedy to a valid marriage, an annulment is like pressing the “cancel” button. You can get an annulment when the marriage was never valid.

      What are the grounds for an annulment?

      In South Carolina, you must have a legal basis to prove your marriage was never valid in order to obtain an annulment.

      • No cohabitation – the spouses never lived together
      • Incest – spouses are too closely related
      • Bigamy – one spouse has a living spouse at the time of the marriage
      • Mental Incompetence – one spouse is mentally disabled and incapable of providing consent.
      • Underage – One of spouses is under sixteen years old
      • Fraud or duress – negating consent
    • Temporary Orders

      WHAT ARE TEMPORARY ORDERS IN A DIVORCE?

      A temporary order is an order issued while the case is pending before a final order is issued. The temporary order could be for spousal support and maintenance, child custody, child support, use of the marital home, payment of bills, attorney fees, or any other matter.

      What and when to file?

      You cannot file a motion for a temporary relief until a complaint is filed first. If you do not file a complaint, your motion for temporary relief will be dismissed. You can file the motion at the same time you file your complaint, or after and should incorporate the facts in your complaint. Also, you need to be specific on the relief you are requesting and include more information, as well as providing the required Temporary Hearing Background Information. Please note, that you have to filed and served your financial declaration before your hearing. You may also submit affidavits in support of your motion, subject to page limitations.

      Temporary Hearing

      Temporary hearings are short, usually fifteen minutes. There are no witnesses at this hearing, only filings, arguments and submitted affidavits.

      When will I get a temporary order?

      You may receive a temporary order on the day of the hearing, or days after, depending on who drafts the order if matters were contested.

      How long does the temporary order last?

      Temporary orders remain in effect until there is a final order, another temporary order replaces it, or the case is dismissed.

    • The South Carolina Divorce Process

      The South Carolina Divorce Process

      South Carolina Rules of Family Court (SCRFC) governs all procedural rules in Family Court. The SCRFC combines elements from South Carolina Rules of Civil Procedure, South Carolina Rules of Evidence, South Carolina Rules of Criminal Procedure for juvenile actions, South Carolina Rules of Evidence, and South Carolina Appellate Court Rules.

      The Complaint

      Every South Carolina divorce case begins with the filing of a Complaint in Family Court. The first step is to either file the complaint or answer the complaint.

      Here are the South Carolina Family Court Rules:

      • General Provisions – Rules 1-3
      • Family Court Records – Rule 6
      • Admissibility of Documents – Rule 7
      • Appearance of Counsel – Rule 8
      • Conduct at Hearings – Rule 9
      • Judges’ Absence from State – Rule 10
      • Jurisdiction of Judge of Adjoining Circuit – Rule 11
      • Attorneys for Guardian Ad Litem – Rule 12
      • Bench Warrants – Rule 13
      • Rule to Show Cause – Rule 14
      • Continuing Jurisdiction – Rule 16
      • Failure to Answer – Rule 17
      • Failure of Defendant to Counterclaim for Divorce – Rule 18
      • Lis Pendens – Rule 19
      • Financial Declaration – Rule 20
      • Temporary Relief – Rule 21
      • Interview with Child – Rule 22
      • Presence or Testimony of Child – Rule 23
      • Automatic Enforcement of Child Support and Periodic Alimony – Rule 24
      • Discovery – Rule 25
      • Orders – Rule 26
      • Enforcement of Visitation – Rule 27
      • Pre-Adjudicatory Detention (Juvenile Actions) – Rule 31
      • Detention Hearing (Juvenile Actions) – Rule 32
      • Transfer of Venue (Juvenile Actions) – Rule 33
      • Waiver Hearing (Juvenile Actions) – Rule 34
      • Adjudicatory Hearing (Juvenile Actions) – Rule 35
      • Right to Counsel (Juvenile Actions) – Rule 36
      • Dispositional Hearing (Juvenile Actions) – Rule 37
      • Counsel and Guardian Ad Litem Fees in Abuse and/or Neglect Proceedings – Rule 41
      • Appendix of Forms

      South Carolina Family Court

      All family court cases are heard “in family court.” This means there are judges who only hear family law cases. Family court judges are elected to six-year terms. The Judicial Merit Selection Commission considers the qualifications and fitness of candidates and submits the names to the general assembly. Then, the state legislators vote and elect judges for family court. There are sixteen judicial circuits in South Carolina. Family court judges rotate primarily from county to county within their resident circuits, but may also rotate outside their resident circuits. For the majority of cases, you will not know which judge will be hearing your case until the Friday before the week of your court date.

      Initial Documents

      Each South Carolina family court case begins with the filing of these initial documents: Family Court Coversheet, Summons, Complaint, and Certificate of Exemption. Either party may request a temporary order by filing a motion along with the Complaint or Answer. A temporary order is an order issued while the case is pending before a final order is issued. The temporary order could be for spousal support and maintenance, child custody, child support, use of the marital home, payment of bills, attorney fees or any other matter.

      Financial Declarations and Discovery

      After the initial documents are filed, the next step in South Carolina divorce cases is the exchange of financial declarations and discovery. Discovery tools include interrogatories, request for production of documents, request for admissions, depositions and subpoenas.

      Mediation

      In South Carolina, parties in family court cases must participate in at least three hours of mediation unless they reach an agreement on all issues. Lawyers at Klok Law are also South Carolina certified family court mediators.

      Trial Preparation and Trial

      Most people do not go to trial. Approximately 90% of family court cases settle before trial. This last step in the process to prepare evidence and witnesses.

    • Divorce Fees and Your Options

      HOW MUCH DOES IT COST TO GET DIVORCED?

      You may want to know how much a divorce typically costs. There is no one answer, it depends. The cost can range from a few hundred dollars to thousands of dollars. Nationwide, the average cost for divorce is $15,000 to $30,000.

      HOW TO SAVE MONEY IN YOUR DIVORCE

      Nail down your goals.

      Spend some time thinking about what issues need to be resolved in your case. Think about what is your worst case, best case, and happy medium for each issue. Here are possible issues in divorce:

      Property and Debt Division

      • Mortgages
      • Credit Card Debt
      • Inheritances
      • Insurance Payments
      • Property
      • Student Loans
      • Family Businesses
      • Separate or premarital assets or debts

      Decision Making

      • Differences in religion
      • Differences in education preferences
      • Differences in medical treatment options
      • Addiction issues
      • Domestic violence

      Parenting Time

      • How old are the children?
      • What are the children’s preferences?
      • Consider where the children are going to school
      • Consider how close or far apart you will live
      • Consider your work schedules

      Child Support

      • Determine all income
      • Child care costs
      • Non-joint children
      • Medical costs
      • Spousal support paid and received
      • Separate child support paid and received
      • Parenting time schedule

      Spousal maintenance/alimony

      • Does one party rely on the other?
      • What will budget be?
      • Where will you live?

      1. Gather your resources.
      Resources are financial and emotional. Consider what it will cost to get what you want. Do a cost-benefit analysis for the best and worst case scenarios for each issue. One reason people spend so much money is that they use their divorce lawyer as a sounding board. While divorce attorneys do provide emotional support, you should not go to your attorney for advice and support on non-legal issues.  You are better off financially and emotionally to use a counselor in that role.

      2. Get it in ship shape.
      Don’t dump documents on your attorney. When you deliver documents to your attorney make sure they are complete, organized and easy to access. It is expensive to pay an attorney to organize your documents.

      3. Use restraint in your communications.
      Don’t call or email your attorney every time your spouse or ex does something you don’t like. Write down your questions and thoughts, and send an email once a week to your attorney with everything that is important to you, or schedule a meeting to go over your issues.

      4. Remember your goals.
      Don’t get caught up in the drama.  Keep your goals in mind and remember your happy medium.  Rarely people get everything they want so keep up the mental cost-benefit analysis as you move forward.

      OPTIONS TO PAY FOR YOUR DIVORCE

      How do you pay for your divorce?  Often, one spouse has access or control of most of the assets making it difficult for the other spouse to access funds. Typically, people fund their divorce in one, or a combination of, these options:

      1. Cash or reserve funds. If you have saving set aside, the easiest way to pay for an attorney is to use the savings.

      2.Credit cards. Many people use credit cards. Most attorneys accept credit cards.

      3. Borrowing money from your retirement account.  Some people take out money out of their retirement account. Be sure to do so before a complaint for divorce is filed, because once filed a temporary order will follow which will probably prohibit you from liquidating assets.

      4. Borrowing money from family or friends.  Many families or friends provide financial assistance in the form of a gift or loan during a divorce. Be aware that if someone else pays for your case, they may want to be involved and control your case. You alone control your case regardless of who pays.

    • An Overview of Divorce in South Carolina

      WHAT HAPPENS AFTER I DECIDE TO GET A DIVORCE?

      When going through a divorce or separation, many people find the process difficult. Life will no longer be the same. There are so many different emotions and affect every person in a different way. Just a few are guilt, shame, fear, anxiety, anger, revenge, and regret. To top it off most are overwhelmed. The legal process can be scary and tough to handle. The filing clerks can’t give you as you may try to muddle through the process. Dig in and find out information or book an appointment. Klok Law is your South Carolina divorce attorney and we are here to help.

      You are searching for information and there is so much out there it is a challenge to break it down. Friends are giving you advice and share their divorce stories. Each story is different so you do not know what to expect for child support, spousal support and maintenance, or alimony. And who keeps the house?

      Stop the sleepless nights! Klok Law will guide you through the basics.

      HOW DO I GET DIVORCED?

      In South Carolina, there are five grounds for divorce:

      1. Adultery
      2. Desertion for one year
      3. Physical Cruelty
      4. Habitual drunkenness (also includes narcotic drug use)
      5. Living separate and part without cohabitation for one year

      See  S.C. Code Ann. §20-3-10 . The reality is if one spouse wants a divorce, there is hardly anything you can do stop them. If the basis for a divorce is adultery, physical cruelty or habitual drunkenness, you do not have to wait the one year to file for divorce.

      If you have to wait one year before you can divorce, you are not left high and dry. You can file an action for separate support and maintenance.

      WHAT IS SEPARATE SUPPORT AND MAINTENANCE?

      In South Carolina, there is no “legal separation.” Do not worry. Instead of filing for divorce, you can for separate support and maintenance where all the issues that you would raise in a divorce action will be ruled on by the family court except for the divorce itself. To qualify, you and your spouse must be living apart. You cannot live in the same house but in separate bedrooms. You have to have separate dwellings.

      WHAT IS THE RESIDENCY REQUIREMENT FOR A SOUTH CAROLINA DIVORCE OR SEPARATE SUPPORT AND MAINTENANCE?

      In order to file for divorce in South Carolina, you must meet one of these conditions:

      1. The plaintiff must have resided in South Carolina for at one year before filing, or

      2. If the plaintiff is a non-resident, then the defendant must have resided in South Carolina for at least one year before filing, or

      3. If both parties are residents of South Carolina, the plaintiff must have resided in South Carolina for three months before filing.

      4. As to active service military members stationed in South Carolina, you are treated as a “resident” or “resided” in South Carolina regardless of your intent to permanently remain in South Carolina or not.

      S.C. Code Ann. §20–3–30

      WHERE DO I FILE?

      In South Carolina, if you file for divorce, or for separate support and maintenance, you must file:

      1. In the county where the defendant resides at the time you file, or
      2. In the county where the plaintiff resides if the defendant is a non-resident or cannot be found after due diligence, or
      3. In the county in which the plaintiff and defendant last resided together as husband and wife unless the plaintiff is a non-resident (unless the plaintiff is a non-resident, then in the county in which the defendant resides).

      S.C. Code Ann. §20–3-60

      DOES SOUTH CAROLINA HAVE COMMON LAW MARRIAGE?

      The South Carolina legislature recognizes common law marriage. See S.C. Code Ann. §20-3-260. A common law marriage is the same as any other marriage in South Carolina. There is no time period requirement to create a common law marriage. You do not need to wait seven years, or any other period of time. You can be common law married after one day or after thirty years. A common law marriage is formed when:

      1. Both parties must intend to be married to each other and have “a mutual understanding of each party’s intent.”
      2. There must be no impediment to marriage, meaning you cannot be married if you are already married to someone else or you marry your brother or sister.
      3. The parties live together.
      4. The parties hold themselves out to the public that they are married.

      Callen vs Callen, 365 S.C. 618, 620 S.E. 2d 59 (2005)

      IS MILITARY DIVORCE ANY DIFFERENT?

      A military divorce has special considerations and is different from other kinds of divorce in South Carolina. For example, the  Servicemembers Civil Relief Act will apply. In that case, the court may delay the action for not less than ninety days. However, a Servicemember may not delay the proceedings indefinitely.

      WHAT IS COLLABORATIVE DIVORCE?

      In a collaborative divorce, both parties have attorneys focusing on resolving divorce, child custody, support, and division of marital property and debt without litigating issues in court. It is a team approach that can include other professionals besides attorneys. The team members can include divorce coaches, financial neutrals and child specialists. A fundamental part of collaborative divorce is that all the parties agree that if they cannot resolve the issues and decide to litigate the issues in family, their existing lawyers will not represent them in litigation. If collaborative law is for you Klok Law is collaboratively trained and certified.

      WHAT IS COOPERATIVE DIVORCE?

      Cooperative divorce is very similar to collaborative divorce. The key difference is that if the parties cannot agree they are not required to find and pay a new lawyer. Changing representation is expensive and takes time to find another good fit with an attorney. Cooperative divorce is focused on resolution and not litigation but affords you the flexibility of going to court to resolve issues, if needed.

      When you reach the end of your rope, call or book online with Klok Law. We are your trusted South Carolina divorce attorneys.

  • Child Custody

    • Emergency Custody

      WHAT IS AN EMERGENCY CUSTODY (TEMPORARY) ORDER?

      An emergency custody order, if granted, goes into effect immediately without providing notice to the other party. The most common type of emergency orders deal with minor children.

      Physical Abuse

      ‘Child abuse or neglect’ or ‘harm’ occurs when the parent, guardian, or other person responsible for the child’s welfare:

      • Inflicts or allows to be inflicted upon the child physical or mental injury or engages in acts or omissions that present a substantial risk of physical or mental injury to the child, including injuries sustained as a result of excessive corporal punishment
      • Abandons the child
      • Encourages, condones, or approves the commission of delinquent acts by the child and the commission of the acts are shown to be the result of the encouragement or approval
      • Has committed abuse or neglect as described above such that a child who subsequently becomes part of the person’s household is at substantial risk of one of those forms of abuse or neglect

      ‘Physical injury’ means death or permanent or temporary disfigurement or impairment of any bodily organ or function.

      S.C. Ann. Code § 63-7-20(6)(a), (d), and (f) and S.C. Ann. Code § 63-7-20(20)

      Neglect

      ‘Child abuse or neglect’ or ‘harm’ occurs when the parent, guardian, or other person responsible for the child’s welfare fails to supply the child with adequate food, clothing, shelter, education as required by law, supervision appropriate to the child’s age and development, or health care even though financially able to do so or offered financial or other reasonable means to do so, and the failure to do so has caused or presents a substantial risk of causing physical or mental injury.

      S.C. Ann. Code § 63-7-20(6)(c)

      Sexual Abuse/Exploitation Citation

      ‘Child abuse or neglect’ or ‘harm’ occurs when the parent, guardian, or other person responsible for the child’s welfare commits or allows to be committed against the child a sexual offense as defined by the laws of this State or engages in acts or omissions that present a substantial risk that a sexual offense as defined in the laws of this State would be committed against the child.

      S.C. Ann. Code § 63-7-20(6)(b)

      Emotional Abuse

      ‘Mental injury’ means an injury to the intellectual, emotional, or psychological capacity or functioning of a child as evidenced by a discernible and substantial impairment of the child’s ability to function when the existence of that impairment is supported by the opinion of a mental health professional or medical professional.

      S.C. Ann. Code § 63-7-20(16)

      Abandonment

      ‘Abandonment of a child’ means a parent or guardian willfully deserts a child or willfully surrenders physical possession of a child without making adequate arrangements for the child’s needs or the continuing care of the child.

      S.C. Code § 63-7-20(1) 

      Standards for Reporting

      A report is required when a mandatory reporter, in his or her person’s professional capacity, has received information that gives him or her reason to believe that a child has been or may be abused or neglected.

      S.C. Ann. Code § 63-7-310 

      Persons Responsible for the Child

      The term ‘person responsible for a child’s welfare’ includes:

      • The child’s parent, guardian, or foster parent
      • An operator, employee, or caregiver, as defined by § 63-13-20, of a public or private residential home, institution, agency, or child care facility
      • An adult who has assumed the role or responsibility of a parent or guardian for the child, but who does not necessarily have legal custody of the child

      A person has not assumed the role or responsibility of a parent or guardian if that person’s only role is as a caregiver whose contact is only incidental, such as a babysitter, or the person has only incidental contact but may not be a caregiver.

      S.C. Ann. Code § 63-7-20(18)

      Exceptions

      The term child abuse or neglect excludes corporal punishment or physical discipline that:

      • Is administered by a parent or person in loco parentis
      • Is perpetrated for the sole purpose of restraining or correcting the child
      • Is reasonable in manner and moderate in degree
      • Has not brought about permanent or lasting damage to the child
      • Is not reckless or grossly negligent behavior by the parents

      S.C. Ann. Code § 63-7-20(6(a)(i)-(v)

      A child’s absences from school may not be considered abuse or neglect unless the school has made efforts to bring about the child’s attendance, and those efforts were unsuccessful because of the parents’ refusal to cooperate.

      S.C. Ann. Code § 63-7-20(6)(c)

      HOW DO I GET AN EMERGENCY CUSTODY ORDER FOR MY CHILD?

      This usually done when there is an underlying Separate Maintenance and Support action filed, or a complaint for divorce.  Once your complaint is filed, you can file at the same time a motion for an emergency hearing, including in your motion a description of the emergency and why the court should sign it without notifying the other party.  You need to describe why the child is in substantial and imminent danger of harm.

      WHAT TYPES OF THINGS WOULD THE COURT CONSIDER AS “SUBSTANTIAL AND IMMINENT DANGER OF HARM” DUE TO ABUSE OR NEGLECT

      To be considered as substantial and imminent danger of harm, the situation must pose a direct and imminent danger to the child by the action or inaction of another. Some examples are

      The child is seriously ill and suffering from extreme malnutrition.

      The child is living in extremely dangerous circumstances, i.e., a meth house.

      The child has been seriously injured by the parent and it is not an accident.

      The child has been touched sexually by an adult

      The child looks sick or ill and the parent has not sought medical attention.

      The child is living with Mom and Mom is living with a man who was convicted of child abuse and had his children removed from his care.

      The child sees you on your weekend visitation and has bruises given to the child by the Mother’s boyfriend who lives in the home.

      WHAT DOCUMENTS DO I NEED TO SHOW THERE IS “SUBSTANTIAL AND IMMINENT DANGER OF HARM” TO MY CHILD?

      You need to document everything, if you see a bruise or notice behavior that you think indicates abuse or neglect, write it down and take photos and videos. Maintain a journal and write down all the instances.  At any doctor’s visit you need to make sure the doctor is aware of your evidence and concerns.  Keep copies of doctor’s reports and statements from the child and others about the abuse or neglect, as well as text messages and emails.

    • Unwed Parents

      WHO HAS CUSTODY OF A CHILD BORN TO UNWED PARENTS IN SOUTH CAROLINA?

      According to South Carolina statutes, an unwed mother has sole custody of an illegitimate child unless a court orders otherwise or she has relinquished her rights. See S.C. Code § 63-17-20(B).

      That does not mean the unwed father can never obtain custody. If paternity has been acknowledged or determined through a paternity action, the father may petition the family court for custody and visitation.

    • Parenting Plan

      WHY AN ATTORNEY SHOULD DRAFT YOUR PARENTING PLAN

      Parenting Plans need to be detailed. Make sure your parenting plan has a detailed schedule.  Don’t just say “liberal visitation”.  There is no liberal visitation definition and you may end up fighting. Contemplate how the parenting plan will change as the children grow up.  What works for elementary children will probably not work for high school students.  Be proactive.  Address moving and parenting time. Many couples end up in court when one parent is moving.

      OTHER IMPORTANT DETAILS TO CONSIDER

      Outline rules for travel outside of the county as well for travel within the United States, including passport applications, etc. Take into account expenses for future orthodontics and eye care and allocate the expenses. Consider a requirement that the parties mediate before going to court. Also, don’t forget to include periodic review of child support.

    • Who Gets the Kids?

      WHO GETS THE KIDS? THE SOUTH CAROLINA GUIDE TO CUSTODY

      Very often one of the first question asked in a divorce is “Who gets the kids?” This can be a flashpoint during divorce proceedings.

      Abolishment of the “Tender Years Doctrine”

      In South Carolina, there is no legal preference for awarding a mother custody of a child of tender years. See S.C. Code Ann. §63-15-10.

      Custody

      In South Carolina, there is either joint custody or sole custody. According to S.C. Code Ann. §63-15-210,

      (1) “Joint custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions.

      (2) “Sole custody” means a person, including, but not limited to, a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.

      Parenting Plans

      Parenting plans must include at minimum “the allocation of parenting time to be spent with each parent, and major decisions, including, but not limited to, the child’s education, medical and dental care, extracurricular activities and religious training.” See S.C. Code Ann. §63-15-220.

      Equal Access to Children’s Education and Medical Records

      Under South Carolina, regardless of the custody arrangement, “…each parent has equal access and the same right to obtain all educational records and medical records of his or her minor children and the right to participate in the children’s school activities and extracurricular activities that are held in public locations unless prohibited…” by court order. See S.C. Code Ann. §63-15-260.

      What is “the best interest of the child?”

      When South Carolina family courts issue or modify a custody order, the family court must consider the best interest of the child. This may include, but is not limited, to the following factors:

      (1) the temperament and developmental needs of the child;

      (2) the capacity and the disposition of the parents to understand and meet the needs of the child;

      (3) the preferences of each child;

      (4) the wishes of the parents as to custody;

      (5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;

      (6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;

      (7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;

      (8) any effort by one parent to disparage the other parent in front of the child;

      (9) the ability of each parent to be actively involved in the life of the child;

      (10) the child’s adjustment to his or her home, school, and community environments;

      (11) the stability of the child’s existing and proposed residences;

      (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;

      (13) the child’s cultural and spiritual background;

      (14) whether the child or a sibling of the child has been abused or neglected;

      (15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;

      (16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and

      (17) other factors as the court considers necessary.
      See S.C. Code Ann. §63-15-240(B).

      Jurisdiction (UCCJEA)

      In order for South Carolina to issue any orders affecting children, South Carolina must have jurisdiction. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a law that insures only one state has jurisdiction over minor children at any given time. A child’s home state is defined as

      (7) “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

      See S.C. Code Ann. §63-15-302(7).

      Generally, South Carolina has jurisdiction to make an initial child custody determination if:

      (1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State, but a parent or person acting as a parent continues to live in this State;

      (2) a court of another state does not have jurisdiction under item (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 63-15-342 or 63-15-344, and:

      (a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

      (b) substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

      (3) all courts, having jurisdiction under item (1) or (2), have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under Section 63-15-342 or 63-15-344; or

      (4) no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3).

      See S.C. Code Ann. §63-15-330(A). It is important to note that the “[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.”
      See S.C. Code Ann. §63-15-330(C).

  • Dividing Property

    • Tips for Negotiating Your Property Settlement Agreement
      There are many different ways to approach a marital property settlement.  Be open to negotiations, refusing to negotiate can be expensive.  Most family court matters are resolved through settlement.  Your offer should be what you think is the best you can get in court, then go from there.  Keep your emotions out of it!  Focus on the financials and the facts. Don’t try to hide assets. Consider mediation if you get stuck.
    • How to Build a Settlement Offer

      First and foremost, the parties must fully disclose their financial status.  In South Carolina, the parties are required to execute a Financial Declaration.  Be sure to fill out your financial declarations fully, execute before a notary, and exchange them before you sit down to negotiate. From there, consider the following:

      • Don’t make emotional decisions as it relates to property.  For example, you may not be able to afford the mortgage on the marital home, consider selling it.
      • Focus on what you want to accomplish not your hard line in the sand.
      • Communicate with each other.
      • Focus on the issues, not the other person.
      • Tax consequences.
      • Value your property before you separate,
    • Co-mingled Property

      Property that starts out as nonmarital may end up marital.  This process is called transmutation of nonmarital property.

      “Property, nonmarital at the time of its acquisition, may be transmuted (1) if it becomes so commingled with marital property as to be untraceable; (2) if it is titled jointly; or (3) if it is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property.” Trimnal v. Trimnal, 287 S.C. 495, 339 S.E. (2d) 869 (1986); Wyatt v. Wyatt, 293 S.C. 495, 361 S.E. (2d) 777 (Ct. App. 1987).

    • Making it Fair
      Remember that when property is divided by the court it is suppose to be fair, not necessarily equal. It is best for divorcing couples to divide up the property themselves. Start by listing the belongings and value the property. Agree on the value of anything that is not valued more than $100. Remember that used furniture is not worth how much you paid for it unless it is an antique. Some things may make sense to go to one spouse instead of the other spouse. Start with the larger items and go down. If you get stuck, flip a coin. Also, you can agree to sell it.
    • How to Protect Your Credit

      In order to protect your credit during a divorce, you may want to

      • Close or separate joint accounts.
      • Take your spouse off as an authorized user.
      • Pull your credit reports and monitor your credit score.
      • You may want to consider freezing your credit in some situations.
      • Refinance whenever you can, mortgages and vehicles.
      • Keep paying all bills until you can separate your accounts, at least send in the minimum payment on all individual or joint accounts.
      • Establish your credit independent, by getting a credit card that has a small credit limit and pay your bills on time.
      • If you cannot get credit on your own, as a family member or friend to co-sign on a loan or credit application. After paying on time for a few months, try again to get credit on your own.

      Build a positive credit history.

    • South Carolina Property Division Basics

      Once you are married, you either have marital or nonmarital property.  Marital property will be equitably apportioned between the parties by the court.  According to South Carolina law,

      “…the term “marital property” as used in this article means all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation as provided in Section 20-3-620 regardless of how legal title is held, except the following, which constitute nonmarital property:

      (1) property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse;

      (2) property acquired by either party before the marriage and property acquired after the happening of the earliest of:

      (a) entry of a pendente lite order in a divorce or separate maintenance action;

      (b) formal signing of a written property or marital settlement agreement; or

      (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

      (3) property acquired by either party in exchange for property described in items (1) and (2) of this section;

      (4) property excluded by written contract of the parties. “Written contract” includes any antenuptial agreement of the parties which must be considered presumptively fair and equitable so long as it was voluntarily executed with both parties separately represented by counsel and pursuant to the full financial disclosure to each other that is mandated by the rules of the family court as to income, debts, and assets;

      (5) any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.

      Interspousal gifts of property, including gifts of property from one spouse to the other made indirectly by way of a third party, are marital property which is subject to division.”

      S.C. Ann. Code § 20-3-630

      The court does not have the jurisdiction or authority to apportion nonmarital property. S.C. Ann. Code § 20-3-630

    • Who Gets the Property, Money and Accounts?

      In South Carolina, the Court will equitably apportion marital property at the time the marital litigation is filed. There are several factors the court will weigh in its apportionment of marital property:

      (1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;

      (2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

      (a) entry of a pendente lite order in a divorce or separate maintenance action;

      (b) formal signing of a written property or marital settlement agreement; or

      (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

      (3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;

      (4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

      (5) the health, both physical and emotional, of each spouse;

      (6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses’s income potential;

      (7) the nonmarital property of each spouse;

      (8) the existence or nonexistence of vested retirement benefits for each or either spouse;

      (9) whether separate maintenance or alimony has been awarded;

      (10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

      (11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

      (12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

      (13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

      (14) child custody arrangements and obligations at the time of the entry of the order; and

      (15) such other relevant factors as the trial court shall expressly enumerate in its order.

      S.C. Ann. Code § 20-3-620(B)

  • Child Support

    • Waiving Child Support
      Agreements to waive child support are only enforceable if they are approved by a family court judge. Don’t rely on oral agreements to waive child support, or written agreements that have not been approved by a family court judge.
    • Seven Myths of Child Support

      MYTH: “I don’t have to let my ex see our children if they don’t pay child support.”

      FACT:  Payment of child support is completely separate from parenting time and you could be found in contempt of court refusing to allow your ex court ordered parenting time.  However, you can file a Rule to Show Cause to have your ex show why they should not be held in contempt of court for failing to pay court ordered child support.

      MYTH: “I only have to pay child support until my child turns 18.”

      FACT: Child support may continue “..past the age of eighteen years if the child is enrolled and still attending high school, not to exceed high school graduation or the end of the school year after the child reaches nineteen.”

      See S.C. Ann. Code § 63-3-530(A)(17)

      MYTH: “I don’t have to pay child support after my ex remarries.”

      FACT: Whether or not you or your ex marries has nothing to do with child support.  You still have to pay. You may file to modify your child support payment based on a change in circumstances. However, the judge can look at all the circumstances, even your new spouse’s income.

      MYTH: “I don’t have to pay for anything other than child support.”

      FACT: The judge can order that you pay a portion of uninsured medical expenses over $250 each year.

    • Health Insurance and Child Support
      Most courts will require that the parents provide health care insurance for their children, in addition to paying co-pays, deductibles and non-covered expenses. The South Carolina Child Support Guidelines take into account the amount the parent pays for health insurance premiums for the children.
    • South Carolina Child Support Calculator
      The South Carolina Department of Social Services provides a free Child Support Calculator online to obtain an estimate of how much child support may be ordered in your case.
    • Child Support Guidelines in South Carolina

      The guidelines provide for calculation of child support for a combined parental gross income of up to $30,000 per month, or $360,000 per year.  If the combined gross income is higher, then the court should determine child support on a case-by-case basis.

      Deviation from the guidelines is the exception and not the rule.  The Child Support Guidelines do not take into account the following factors which can be possible reason for deviation:

      1. Educational expenses for the child(ren) or the spouse (i.e., those incurred for private, parochial, or trade schools, other secondary schools, or post‐secondary education where there is tuition or related costs);

      2. Equitable distribution of property;

      3. Consumer debts;

      4. Families with more than six children;

      5. Unreimbursed extraordinary medical/dental expenses for either parent, or extraordinary travel expenses for court‐ordered visitation;

      6. Mandatory deduction of retirement pensions and union fees;

      7. Child‐related unreimbursed extraordinary medical expenses;

      8. Monthly fixed payments imposed by court or operation of law;

      9. Significant available income of the child(ren);

      10. Substantial disparity of the parents’ incomes;

      11. Alimony. Because of their unique nature, lump sum, rehabilitative and reimbursement alimony may be considered by the court as a possible reason for

      deviation from these guidelines;

      12. Agreements Reached Between Parties. The court may deviate from the guidelines based on an agreement between the parties if both parties are represented by counsel or if, upon a thorough examination of any party not represented by counsel, the court determines the party fully understands the agreement as to child support. The court still has the discretion and the independent duty to determine if the amount is reasonable and in the best interest of the child(ren).

    • Family Medical Leave Act and Child Support
      In South Carolina, Child Support Orders are only modified if there has been a substantial change in circumstances.  FMLA situations are usually temporary in nature and would not be considered a substantial change in circumstances.
    • How Do I Get Child Support?
      If you are receiving TANF (Temporary Assistance for Needy Families) DSS will automatically apply for child support services to you. Through the South Carolina Department of social Services Division (CSSD), any parent who has physical custody and needs help obtaining child support may apply for services.  A non-custodial parent may apply to have paternity established. If you are not receiving TANF, you are charged $25.00 a year after $500.00 in child support has been collected.
    • Calculating Child Support
      In South Carolina, Child Support Guidelines are available for temporary and permanent child support orders.  The child support calculation model is based on an incomes shares model that calculates child support as the share of each parent’s income which would have been spent on the children if the parents and children were living in the same household.

  • Alimony/Spousal Support

    • Financial Disclosure
      In South Carolina, in any family law case where the financial conditions of the parties is relevant or is an issue to be considered by the court, a current financial declaration must be served and filed by all parties. S.C. Family Court Rule 20(a) “Financial declarations shall be filed and served prior to or at the first hearing, or no later than 45 days after the complaint is served, whichever occurs first.” S.C. Family Court Rule 20(b)
    • Cohabitation
      In South Carolina, a ex-spouse no longer has to pay periodic alimony if their former spouse remarries or the supported spouse continuously cohabitates with another. “Unless otherwise agreed to in writing by the parties, “continued cohabitation” means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.”  See S.C. Ann. Code §20-3-130(B)
    • South Carolina’s Spousal Maintenance Laws

      The court may grant different forms of alimony or spousal support depending upon the circumstances. “Alimony and separate maintenance and support awards may be granted pendente lite and permanently in such amounts and for periods of time subject to conditions as the court considers just including, but not limited to:

      (1) Periodic alimony to be paid but terminating on the remarriage or continued cohabitation of the supported spouse or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances occurring in the future. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to order the payment of alimony on an ongoing basis where it is desirable to make a current determination and requirement for the ongoing support of a spouse to be reviewed and revised as circumstances may dictate in the future.

      (2) Lump-sum alimony in a finite total sum to be paid in one installment, or periodically over a period of time, terminating only upon the death of the supported spouse, but not terminable or modifiable based upon remarriage or changed circumstances in the future. The purpose of this form of support may include, but not be limited to, circumstances where the court finds alimony appropriate but determines that such an award be of a finite and nonmodifiable nature.

      (3) Rehabilitative alimony in a finite sum to be paid in one installment or periodically, terminable upon the remarriage or continued cohabitation of the supported spouse, the death of either spouse (except as secured in subsection (D)) or the occurrence of a specific event to occur in the future, or modifiable based upon unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting or the ability of the supporting spouse to pay the rehabilitative alimony. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to provide for the rehabilitation of the supported spouse, but to provide modifiable ending dates coinciding with events considered appropriate by the court such as the completion of job training or education and the like, and to require rehabilitative efforts by the supported spouse.

      (4) Reimbursement alimony to be paid in a finite sum, to be paid in one installment or periodically, terminable on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse (except as secured in subsection (D)) but not terminable or modifiable based upon changed circumstances in the future. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it necessary and desirable to reimburse the supported spouse from the future earnings of the payor spouse based upon circumstances or events that occurred during the marriage.

      (5) Separate maintenance and support to be paid periodically, but terminating upon the continued cohabitation of the supported spouse, upon the divorce of the parties, or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances in the future. The purpose of this form of support may include, but is not limited to, circumstances where a divorce is not sought, but it is necessary to provide for support of the supported spouse by way of separate maintenance and support when the parties are living separate and apart.

      (6) Such other form of spousal support, under terms and conditions as the court may consider just, as appropriate under the circumstances without limitation to grant more than one form of support.”

      See S.C. Ann. Code §20-3-130(B)

    • Calculating Alimony

      When calculating alimony, the court will grant alimony in the amounts and periods of time subject to conditions it considers just.  “In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:

      (1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;

      (2) the physical and emotional condition of each spouse;

      (3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;

      (4) the employment history and earning potential of each spouse;

      (5) the standard of living established during the marriage;

      (6) the current and reasonably anticipated earnings of both spouses;

      (7) the current and reasonably anticipated expenses and needs of both spouses;

      (8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;

      (9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;

      (10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

      (11) the tax consequences to each party as a result of the particular form of support awarded;

      (12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and

      (13) such other factors the court considers relevant.”

      See S.C. Ann. Code §20-3-130(C)(1)-(13).

  • Enforcement

    • Enforcing Parenting Time

      South Carolina courts use the same mechanism to enforce any provision in a divorce decree to enforce parenting time.  If a parent does not return the child when required by the court order, the other parent may file a Rule to Show Cause that the other parent should be held in contempt of court.  The same penalties apply: “…imprisonment in a local detention facility for one year, a fine of fifteen hundred dollars, or public works sentence of more than three hundred hours, or any combination of them.”  S.C. Ann. Code §63-03-620

    • Enforcing The Rules in Your Divorce
      In South Carolina, family court orders can be enforced through contempt of court resulting in punishment “by a fine, by a public works sentence, or by imprisonment in a local detention facility, or by any combination of them, in the discretion of the court, but not to exceed imprisonment in a local detention facility for one year, a fine of fifteen hundred dollars, or public works sentence of more than three hundred hours, or any combination of them.”  S.C. Ann. Code §63-03-620 If your ex-spouse violates your divorce decree, you can file a Petition for Rule to Show Cause why your ex-spouse should be held in contempt of court.  The Rule to Show Cause must be verified or filed with an affidavit in support.

  • Modification

    • Changing a Child Support Order

      At any time after final judgment, and child custody or support order may be changed:

      “In any action for divorce from the bonds of matrimony the court may at any stage of the cause, or from time to time after final judgment, make such orders touching the care, custody and maintenance of the children of the marriage and what, if any, security shall be given for the same as from the circumstances of the parties and the nature of the case and the best spiritual as well as other interests of the children may be fit, equitable and just.”   S.C. Ann. Code §20-3-160

      In particular, “this authority includes the right to modify any such decree, judgment, or order for child support as the court considers necessary upon a showing of changed circumstances. No such modification is effective as to any installment accruing prior to filing and service of the action for modification. Additionally, the family court has the right to hold any arrearage in child support in abeyance.” S.C. Ann. Code §63-17-310  “The court shall consider the following factors which…may be used in determining whether a change in circumstances has occurred which would require a modification of an existing order:

      (1) educational expenses for the child or children or the spouse, to include those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or related costs;

      (2) equitable distribution of property;

      (3) consumer debts;

      (4) families with more than six children;

      (5) unreimbursed extraordinary medical or dental expenses for the noncustodial or custodial parent;

      (6) mandatory deduction of retirement pensions and union fees;

      (7) support obligations for other dependents living with the noncustodial parent or noncourt ordered child support from another relationship;

      (8) child-related unreimbursed extraordinary medical expenses;

      (9) monthly fixed payments imposed by a court or operation of law;

      (10) significant available income of the child or children;

      (11) substantial disparity of income in which the noncustodial parent’s income is significantly less than the custodial parent’s income, thus making it financially impracticable to pay what the guidelines indicate the noncustodial parent should pay;

      (12) alimony; because of their unique nature, lump sum, rehabilitative, reimbursement, or any other alimony that the court may award, may be considered by the court as a possible reason for deviation from these guidelines;

      (13) agreements reached between parties; the court may deviate from the guidelines based on an agreement between the parties if both parties are represented by counsel or if, upon a thorough examination of any party not represented by counsel, the court determines the party fully understands the agreement as to child support. The court still has the discretion and the independent duty to determine if the amount is reasonable and in the best interest of the child or children.”

      S.C. Ann. Code §63-17-470

    • South Carolina’s Modification Rules For Alimony

      Under South Carolina law, “Whenever any husband or wife, pursuant to a judgment of divorce from the bonds of matrimony, has been required to make his or her spouse any periodic payments of alimony and the circumstances of the parties or the financial ability of the spouse making the periodic payments shall have changed since the rendition of such judgment, either party may apply to the court which rendered the judgment for an order and judgment decreasing or increasing the amount of such alimony payments or terminating such payments and the court, after giving both parties an opportunity to be heard and to introduce evidence relevant to the issue, shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the supporting spouse, decreasing or increasing or confirming the amount of alimony provided for in such original judgment or terminating such payments. Thereafter the supporting spouse shall pay and be liable to pay the amount of alimony payments directed in such order and judgment and no other or further amount and such original judgment, for the purpose of all actions or proceedings of every nature and wherever instituted, whether within or without this State, shall be deemed to be and shall be modified accordingly, subject in every case to a further proceeding or proceedings under the provisions of this section in relation to such modified judgment.

      (B) Retirement by the supporting spouse is sufficient grounds to warrant a hearing, if so moved by a party, to evaluate whether there has been a change of circumstances for alimony. The court shall consider the following factors:

      (1) whether retirement was contemplated when alimony was awarded;

      (2) the age of the supporting spouse;

      (3) the health of the supporting spouse;

      (4) whether the retirement is mandatory or voluntary;

      (5) whether retirement would result in a decrease in the supporting spouse’s income; and

      (6) any other factors the court sees fit.”

      S.C. Ann. Code §20-3-170

    • What is Modification?

      There may be times when circumstances have changed and one of the parties, or both, want to modify an existing court order of custody and/or support.  You can file for a Modification of Child Support, Modification of Alimony, and/or Modification custody/visitation.  A final order on the distribution of marital property is not subject to modification. S.C. Ann. Code §20-3-620(C)

  • Adoption

    • Foster Care Adoptions

      “The Department of Social Services shall administer an adoption program on behalf of the State. Adoption services must be available statewide. The adoption program provided by the department must be a centrally administered state program. The department shall designate regions which will be administered by the state office. The adoption unit shall constitute a separate and distinct unit within the department so as to assure specialization of effort and effective access to the department director. This unit must be staffed with qualified personnel professionally trained in the social work or other related fields. The department shall continually evaluate its staffing, functions, policies, and practices on the basis of nationally recognized standards. A committee to advise the department on all children’s services must be appointed by the department director. Persons appointed to the committee must be knowledgeable on adoption, protective services, foster care, and other children’s services.”

      S.C. Ann. Code §63-9-1330

    • International Adoptions

      “In the case of a child born in a foreign country who was not a United States citizen at birth and whose adoption was finalized in a foreign country, the court shall review the documentation as required by this section and, if it finds the documentation to be satisfactory, shall issue an order stating that the documentation required by this section has been submitted and is satisfactory and that the foreign adoption must be recognized and domesticated in South Carolina. The court shall transmit the order and the certificate of adoption to the State Registrar of Vital Statistics without the necessity of a hearing unless the court finds the documentation submitted pursuant to subsection (B) is unsatisfactory and such finding is stated in the order resulting from the hearing.

      (B) Documentation required to be submitted to the court includes, but is not limited to:

      (1) a verified petition seeking domestication of the foreign adoption;

      (2) a post foreign adoption home study completed by a person certified pursuant to Section 63-9-360 which evaluates the adjustment and progress of the child and family since adoption;

      (3) naturalization papers, if available;

      (4) other documentation as the court may request as stated in materials developed pursuant to subsection (C).

      (C) Court administration in consultation with the Department of Health and Environmental Control shall develop petition forms, including documentation required to be filed with the petition, and guidelines for obtaining the domestication of a foreign adoption. These forms and guidelines must be available to the public upon request at all county clerks of court offices and at Department of Health and Environmental Control offices.

      (D) The state registrar, upon receipt of the order and certificate of adoption shall take action as provided in Section 44-63-140 with respect to the issuance and filing of an amended certificate of birth.”

      S.C. Ann. Code §63-9-910

    • Domestic Adoptions
      “Any child present within this State at the time the petition for adoption is filed, irrespective of place of birth or place of residence, may be adopted.”  S.C. Ann. Code §63-9-50
    • Stepparent Adoptions

      In South Carolina, “any person may adopt his spouse’s child, and any person may adopt a child to whom he is related by blood or marriage. In the adoption of these children:

      (1) no investigation or report required under the provisions of Section 63-9-520 is required unless otherwise directed by the court;

      (2) no accounting by the petitioner of all disbursements required under the provisions of Section 63-9-740 is required unless the accounting is ordered by the court;

      (3) upon good cause shown, the court may waive the requirement, pursuant to Section 63-9-750, that the final hearing must not be held before ninety days after the filing of the adoption petition;

      (4) upon good cause shown, the court may waive the requirement, pursuant to Section 63-9-320(A)(2), of the appointment of independent counsel for an indigent parent; and

      (5) upon good cause shown, the court may waive the requirement, pursuant to Section 63-9-60(A)(2), that the adoption proceeding must be finalized in this State.”

      S.C. Ann. Code §63-9-1110

    • Who Can Adopt?

      South Carolina residents may adopt children in South Carolina family court. ‘”South Carolina resident” means a person who has established a true, fixed principal residence and place of habitation in this State, and who intends to remain or expects to return upon leaving without establishing residence in another state. Temporary absences for short periods of time do not affect the establishment of residency.’ S.C. Ann. Code §63-9-30(9) 

  • Family Law

    • What are the grounds for divorce in South Carolina?

      In South Carolina there are four grounds for divorce:

      1. Adultery
      2. Desertion for a period of one year
      3. Physical cruelty
      4. Habitual drunkenness (can also be caused by narcotic drug use)
      5. Living separate and apart without cohabitation for a period of one year

      See SECTION 20-3-10. Grounds for divorce.

    • How do I get an emergency custody order for my child?

      The grounds for an emergency hearing for child custody issues generally require that the child is in substantial and imminent danger of abuse or neglect. For example, the father is doing crack with sex offenders while the child is present, or spouse buying plane tickets to take the children to Saudi Arabia and does not intend to return.

    • If I remarry can I still receive my spouse’s Social Security benefits?

      You may not receive Social Security benefits on your ex-spouse’s record if you remarry.

      See Social Security Benefits Planner: Retirement.

    • When can I start to receive my spouse’s Social Security benefits?

      You can start to receive benefits on your ex-spouse’s Social Security record when you are age 62 or older.

    • Do I receive both my Social Security benefits and my spouse’s Social Security benefits?

      It depends.  If you are eligible for retirement benefits on your own record and on your divorced spouse’s benefits, Social Security will pay the retirement benefit first. If the benefit on your ex-spouse’s record is higher, you will get an additional amount on your ex-spouse’s record so that the combination of benefits equals that higher amount.

    • If I divorce, will I receive Social Security benefits?

      The short answer is that it depends on the circumstances. Sorry, it is not a clear-cut answer. If you are divorced and your marriage lasted 10 years or longer, then you can receive benefits on your ex-spouse’s record (even if your ex-spouse has remarried) as long as

      1. You are unmarried
      2. You are 62 or older
      3. Your ex-spouse is entitled to Social Security retirement or disability benefits; and
      4. The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work.

      See Social Security Benefits Planner: Retirement.

    • Do grandparents have visitation rights to their grandchildren?

      In South Carolina, there are some circumstances in which the family court will award a grandparent visitation. The court may order grandparent visitation if the child’s parents are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation for the minor child for a period exceeding 90 days and

      1. The court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
      2. The court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.

      See SECTION 63-3-530. Jurisdiction in domestic matters.

    • What will happen if a parent does not pay court-ordered child support?

      In South Carolina, if you fail to comply with a Family Court Order, it can result in up to one year in prison and/or a fine up to $1,500.00 and/or three hundred hours in community service.

    • How is child support calculated in a divorce or child support case?

      In South Carolina, child support is calculated based on the South Carolina Child Support Guidelines. The guidelines are based on the concept that the children should receive the same proportion of parental income that they would have received had the parents not divorced. Determination of child support takes into account the following:

      1. Gross Income
      2. Income from Self-Employment or Operation of a Business
      3. Potential Income
      4. Income Verification
      5. Monthly Alimony (this action)
      6. Other Monthly Alimony or Child Support Paid
      7. Other Children in the Home
      8. Basic Child Support Obligation
      9. Self-Support Reserve
      10. Health Insurance
      11. Child Care Costs

      Certain custody arrangements may alter the child support calculation. For example, if the parents have shared physical custody and each over more than 109 overnights each year, then there will be an adjustment to the calculation. It is important to consult with an attorney for child support obligations before you have a court order.

    • What is sole custody?

      Sole custody means a person, i.e., a parent, has temporary or permanent custody of a child and, unless otherwise provided by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.

      See SECTION 63-15-210.Definitions. 

    • What is joint custody?

      Joint custody means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training. However, a judge may designate one parent to have the sole authority to make specific, identified decisions, while both parents retain equal rights and responsibilities for all other decisions.

      See SECTION 63-15-210. Definitions.

    • How does the court determine who gets custody of the children?

      The court determines custody by determining what is in the best interest of the child based on the evidence presented.

      See SECTION 63-15-230. Final custody determination; considerations.

    • What is marital property?

      Marital property means all real and personal property acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation, except the following is considered nonmarital property:

      1. Property acquired by inheritance, devise, bequest, or gift from a party other than a spouse;
      2. Property acquired before the marriage and property acquired after the happening of the earliest of
        • Entry of a temporary order in a divorce or separate maintenance action,
        • The formal signing of a written property or marital settlement agreement, or
        • Entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.
      3. Property acquired by either party in exchange for property described in (1) and (2) above.
      4. Property excluded by written contract of the parties, meaning any antenuptial agreement which must be fair and equitable so long as it was voluntarily executed by both parties separately represented by counsel and pursuant to full financial disclosure to each other as to income, debts, and assets.
      5. Any increase in the value of the nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.

      Gifts of property from one spouse to the other, or indirectly by way of a third party, are marital property.

      See SECTION 20-3-630. Marital property; nonmarital property.

    • Who decides how we split our assets?

      You and your spouse can decide and have the court approve the division, or if you cannot decide the court will decide for you us. The court will make a final “equitable apportionment” between the parties of the parties’ marital property. The following factors will be considered:

      1. Duration of the marriage together with ages of the parties at the time of marriage and at the time of divorce.
      2. Martial Misconduct or fault of either or both parties, whether or not used as a basis for divorce, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage. However, the court will not look at marital misconduct if the conduct took place after the happening of the earliest of
        1. Entry of a temporary order in a divorce or separate maintenance action;
        2. The formal signing of a written property or marital settlement agreement; or
        3. Entry of a permanent order of separate maintenance and support, or of a permanent order approving property or marital settlement agreement between the parties.
      3. The value of the marital property and the contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in the value of the marital property, including the contribution of the spouse as homemaker, considering the quality of the contribution as well as its factual existence.
      4. The income of each spouse, the earning potential of each spouse, and opportunity for future acquisition of capital assets.
      5. The physical and mental health of each spouse.
      6. The need of each spouse or either spouse for additional training or education to achieve income potential.
      7. The nonmarital property of each spouse.
      8. The existence or non-existence of vested retirement benefits for each or either spouse.
      9. Whether separate maintenance or alimony has been awarded.
      10. The desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of the children.
      11. The tax consequences to each or either party as a result of any particular form of equitable apportionment.
      12. The existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party.
      13. Liens on the marital property to be equitably divided, or separate property of either of the parties and any other existing debts incurred by the parties or either of them during the course of the marriage.
      14. Child custody arrangements and obligations at the time of the entry of the order; and
      15. Other relevant factors as the trial court shall state in its order.

      See SECTION 20-3-620. Apportionment factors.

    • In what county do I file?

      For divorce or separate support and maintenance actions, you must file in

      1. the county where the defendant resides when you file,
      2. The county where the plaintiff resides if the defendant is a nonresident, or cannot be found after due diligence, or
      3. The county in which the parties last resided together as husband and wife, unless the plaintiff is a non-resident, then it must be filed in the county where the defendant resides.

      See SECTION 20-3-60. Venue.

    • How long do I have to live in South Carolina to get a divorce here?

      South Carolina family courts to have jurisdiction if one of the following is true:

      1. The plaintiff must have resided in South Carolina for at least one year prior to filing.
      2. If the Plaintiff is not a resident, then the Defendant must have resided in South Carolina for a least one year prior to filing.
      3. When both parties are residents of South Carolina when filing, the plaintiff must have resided in South Carolina for three months before filing.

      See SECTION 20-3-30. Residence requirement.

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