Download your copy of the Exit Strategy now!

Know the first five steps before you leave your marriage.
Discover the documents you need to gather before you leave your home.
Practical tips to make sure you you protect yourself and your assets through your divorce.
Easy to implement strategies to stay organized through the process.

How Do We Prove the No Fault Divorce Ground: Continuous Separation for Over 1 Year

Question: My wife and I have lived apart for over ten months but the first 6 months she lived with her mother, the last four months she has owned her own home.  We both want a simple divorce, how do we account for the first 6 months of separation?

Answer: The South Carolina Code of Laws sets forth five grounds for divorce in South Carolina in §20-3-10.  Sub-paragraph (5) is the provision for the no-fault ground as follows, “on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year.”

The law essentially only requires living apart from one another for greater than one year.  Our appellate courts have identified some things that do not qualify as living “separate and apart” such as one spouse moving out of the marital bedroom and sleeping in the basement or the couch in the den.  Likewise, living in an RV in the backyard would also not be living separate and apart.

Your case is different.  You did separate and your wife moved into her mother’s home for the first six months of separation and later she purchased a home of her own.

In a hearing for divorce on this ground the evidence is typically the testimony of a witness who has a good relationship with one or both of the parties who can corroborate that you have lived apart for more than one year and have not resumed cohabitation during that time.  So, in your case, perhaps her mother could testify that your wife moved in with her for six months and then moved into her own home.  She could go on to testify that when your wife moved out of her home she moved into a new home of her own and she keeps up with her daughter on a regular basis and is confident that the two of you have not resumed cohabitation.

Do Fathers have Custody Rights when Parents Were Never Married

Question:

My ex and I have two children, but were never married.  When we separated the kids lived with and stayed with me on the weekends or every other weekend depending on their schedule. No custody agreement had been made with the courts but I’ve been paying child support. She recently married and left the state to be with her new husband who is very sick. She left the children in her home in the care of her 20 year old daughter. While she has been gone, things have changed from the 20 year old watching the children to me having them all of the time.  Do I have rights and if so what do I need to do to take custody of my children?

Answer:

You certainly have rights, but since you were never married paternity must be established by the Court. You may be listed on the birth certificates for the children, but likely have few guaranteed rights since the children were born outside of marriage and you have not been to court to formalize any custody/visitation. I am also assuming that the child support you are paying has been voluntary and not court-ordered. In the event your child support was court ordered you would almost certainly have been declared the father – so this may not be an issue.

You will need to file an action seeking temporary and permanent custody of the children. The first step in that case will be a temporary hearing where you will ask the court to award you temporary custody of the children. Your ex must be served with notice of the motion and hearing time. These cases can be complex and difficult to navigate through the system, so I would encourage you to speak with a lawyer in your area to help you out.  Initial custody cases in South Carolina are decided by the Court determining what is in the best interest of the children and the court considers many factors when determining the best interest.  The South Carolina Code §63-15-240(B) sets forth those 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.

None of these factors will tip the “best interest” scale alone, but all are considered and weighed by the Family Court Judge in the determination of custody.

Help! How Can I Get Started Seeking Financial Assistance from my Spouse?

Question: My husband has deserted me and refuses to help me financially. He has moved in with his mistress and won’t have any contact with me! How do I file for spousal support? He is refusing to help me. Answer: You should consult with a lawyer immediately so that you can move forward with the Family Court […]

Continue reading...

My Spouse Won’t Leave…Can I Still File for Divorce?

When it is time for a divorce, who gets to remain in the home is often a hot issue. But what if you want a divorce and your spouse won’t leave? Can you file? Are you stuck? What do you do?

Continue reading...

How do South Carolina Family Courts divide property and debts in divorce cases

There are two main division methods in divorce law nationwide: community property and equitable apportionment states.  South Carolina is an equitable apportionment state. So, what does that mean? Equitable Apportionment means that South Carolina Family Courts have jurisdiction in a divorce case to divide up the marital assets and debts acquired during the marriage.  Our Code of Laws […]

Continue reading...