Why do I have to complete a financial declaration?
In family court matters, most clients are asked to complete a financial declaration to present to the Court and other parties. When I make the request for my clients to complete this form, I am often met with a lot of questions and push back. The reasons vary: they think it isn't relevant because they reached an agreement, they are afraid that a judge will change their agreement because of what is shown on the financial declaration (good or bad), or they may just value their privacy. So why do you have to complete a financial declaration?
Rule 20 of the South Carolina Family Court Rules states that whenever the financial condition of a party is relevant or is an issue to be considered by the court a financial declaration (on the court form) must be served and filed by all parties. The rule requires filing and service prior to the first hearing (which is normally a temporary hearing) or within 45 days of filing.You will be asked to complete a financial declaration whenever your financial condition is relevant or one of the issues being considered by the court. In almost all circumstances, this will be required. When there are minor children, financial declarations will be required when considering child support. If alimony is an issue, the financial situation of the parties is certainly relevant. Even if there are no child support or alimony issues, but the parties are dividing assets/debts as part of their divorce the financial declaration will be required. Many judges will require a financial declaration even in the simplest of divorce cases.Many people complete these financial very quickly without giving it much thought, but that can be very dangerous. When presenting this information to the court, it is very important to remember a couple of things. First, this document is one of the most important documents that the court will consider when determining the financial issues in your case. Second, you are signing this document in the presence of a notary. This is a sworn document and is the same as if you were testifying in front of a judge in open court. That means it is subject to the same penalties as perjured testimony in court.
Where do I file my divorce?
When you are preparing to file for a divorce most people would like to file it in the county/court most convenient to them, but that is not always proper or allowed. When considering the proper county for filing your divorce you are considering the proper "venue". In South Carolina, the proper venue is determined by SC Code §20-3-60.
South Carolina law requires divorce and separate support and maintenance actions to be filed in the county
- where the Defendant resides at the time of filing your divorce case;
- where the Plaintiff resides if the Defendant lives out of state or if the Defendant cannot be found; or,
- where the Plaintiff and Defendant last resided as husband and wife - unless the Plaintiff is not a resident of the State of South Carolina. In that case the divorce must be filed in the county where the Defendant is living.
So you can see that the Plaintiff cannot necessarily file the divorce in the most convenient forum. They must follow these rules. Here are some examples:
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff remains in Greenville County and Defendant moved to Horry County. Plaintiff may file for the divorce in either Greenville County or Horry County because that satisfies paragraph 1 and 3, above.
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff now resides in North Carolina. Defendant has moved to Spartanburg County. Plaintiff must file for the divorce in Spartanburg County since that is where the Defendant is now living.
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff now resides in Greenville County. Defendant resides in New Mexico. Plaintiff must file in Greenville County since the Defendant resides out of state.
Do We Have to Separate and if I do, will I lose any rights?
Question: My spouse is threatening to sue me for abandonment if I leave and telling me that I won't get anything from the home if I leave the home. Our marriage is over and I cannot stay there any longer. Can I leave the home or am I required to stay? 
Answer:This is a very common threat in divorce matters. The fear of the unknown and a lack of understanding of the law keeps people together - even in dangerous or abusive situations. So, let's look a little deeper. Is is okay to leave the home or will you forfeit some rights if you move out?I'll start out by saying that the implications of moving out first can be far-reaching so you should definitely consult with a lawyer in your area about the specifics of your case to determine how this may affect you.In general, South Carolina law requires you to live separate and apart from one another to file for divorce on the grounds of continuous separation for more than one year (the South Carolina no fault divorce ground), desertion, and for separate support and maintenance (similar to a legal separation in other states). In 2011 the South Carolina Supreme Court clarified this in Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011). It is possible to file for a divorce based on habitual drunkenness, adultery, and physical abuse while still remaining in the same home.So, it is possible to file some actions before you separate, but other actions require the separation. So, when your spouse says that they will file for abandonment if you move out, that is usually a trumped up threat than cannot be backed up. South Carolina law requires a physical separation in many cases.Now, can you forfeit rights by moving out? This is always a risk on a temporary basis. The issue is usually that you are seeking custody of the children and need to file for the divorce or separation but your spouse refuses to move out. Sometimes your only option may be to move out so the court has jurisdiction to decide your case. But, many times the judge may decide that the party who moved out chose not to live in the former marital home and may not allow them to return. But, this is a temporary decision. In the overall division and apportionment of the marital assets/debts it will not matter which spouse moves out initially.Without moving out of the home you could attempt to come up with facts sufficient to claim a fault-based divorce ground to keep you from having to move out. Many times this will lead people to making trumped up claims of fault with no real evidence and make the case more contested and more difficult to resolved by settlement later on.Like I stated before, the specific facts of your case may make your decision easier to make. Please consult with a lawyer in your area to find out more. I would be more than happy to schedule a time for us to discuss your divorce or separation case.
South Carolina Child Custody
Understanding Child Custody in South Carolina
If you are facing separation or divorce, you probably have questions about what comes next. The same is true if you are unmarried, share children with someone, and are considering ending the relationship. Where will your children live? How much time will you have with them? Who will make important decisions about their lives?
As you talk with friends or research custody online, you may hear terms like sole custody, joint custody, shared custody, and primary parent. Those terms can be confusing, especially when different people use them to mean different things.
Rather than focusing only on labels, I encourage parents to separate custody into two practical questions:
When will your children spend time with each parent?
Who will have responsibility for making important decisions?
Understanding the distinction between parenting time and decision-making can help you evaluate what a proposed agreement or court order would actually mean for your family.
Time With Your Children
For many parents, the most immediate concern is simple: When will I see my children?
South Carolina Code § 63-15-210 defines joint custody and sole custody primarily in terms of responsibility for major decisions. Those labels, by themselves, do not tell you the parenting schedule. Joint custody does not automatically mean equal time, and sole custody does not automatically mean the other parent has no parenting time. The actual agreement or court order must address those arrangements.
When negotiating a parenting plan, parents can consider schedules that fit their children’s needs and their family’s circumstances. Possible arrangements include:
Alternating weeks.
Dividing each week between the parents.
Having the children live primarily with one parent, with regular weekday and weekend time with the other.
Coordinating parenting time around a parent’s work schedule.
Establishing separate schedules for holidays, school breaks, and summer vacations.
These are options to consider, not outcomes that either parent is automatically entitled to receive. The court’s focus is the children’s best interests, including their developmental needs and each parent’s ability to meet those needs.
The practical point is this: Do not assume your only choices are equal time or every other weekend. Focus on the details of the proposed schedule and whether it serves your children’s needs.
Responsibility and Decision-Making
The second question is who will make important decisions about your children’s lives.
South Carolina Code § 63-15-210 identifies two types of custody: joint custody and sole custody. Its definitions address major decisions involving education, medical and dental care, extracurricular activities, and religious training.
Joint custody
Joint custody generally means both parents have equal rights and responsibilities for major decisions concerning their children. However, the court may give one parent sole authority over specific, identified decisions while leaving other decisions shared.
For example, an order might assign one parent authority over educational decisions and the other authority over medical decisions. The important question is not simply whether the order says “joint custody,” but how it allocates authority.
A joint custody order must also explain how the parents will consult and communicate about major decisions. If one parent has final decision-making authority, both parents should understand what the order requires before that authority can be exercised. Being designated the final decision-maker should not be treated as permission to disregard consultation requirements in the order.
Sole custody
Sole custody generally gives one parent the rights and responsibilities for major decisions concerning the children, unless the court order provides otherwise. The specific language of the order matters because it may establish additional requirements or limitations.
Sole custody does not necessarily eliminate the other parent’s time with the children. South Carolina law allows the court to award sole custody to one parent with appropriate parenting time for the other.
When deciding which arrangement is appropriate, the court considers the children’s best interests. Relevant factors include each parent’s relationship with the children, ability to meet their needs, and willingness to support the children’s relationship with the other parent. Difficulty communicating may be relevant, but it does not make a particular custody outcome automatic.
Focus on the Details
Custody labels have legal meaning, but they do not answer every practical question about life after separation.
When reviewing a proposed parenting agreement or custody order, ask:
What is the regular parenting schedule?
How will holidays, school breaks, and summer vacations work?
Which decisions must the parents make together?
Does either parent have final authority over specific issues?
What consultation is required before a decision is made?
What happens when the parents disagree?
A useful parenting arrangement should make both the schedule and the decision-making process clear. The goal is not simply to obtain a particular custody label. It is to establish an arrangement that protects your children’s interests and gives both parents a clear understanding of their responsibilities.
Alimony in South Carolina
Alimony is a hot topic in many South Carolina divorce cases, but many times spouses ask for it in order to punish their spouse for some bad deeds committed during the marriage. So what is alimony?Alimony is defined as "a substitute for the support which is normally incident to the marital relationship" Lide v. Lide, 277 SC 155 (1981). What does that mean? It means that while the couple is together they have some expectation that there is some mutual financial support for the marriage. When the marriage is ending and the parties separate alimony helps the spouse with the smaller income to have a similar lifestyle to that which he/she became accustomed to during the marriage.SC Code §20-3-130(A) states that the Family Court may award alimony "in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case". Essentially what that means is that the Family Court Judge who is deciding the case has a lot of discretion to determine the amount of alimony that is awarded. Unlike child support, there is no calculator or formula for the court to use to determine an amount.
Types of Alimony
In general, the statute outlines four different types of alimony that can be awarded by the Court in SC Code §20-3-130(B):(1) Periodic alimony. This is alimony that is paid every month on an ongoing basis and is generally thought to be permanent. This type of alimony will only end when the receiving spouse remarries or on their continued cohabitation or either spouse dies. This alimony therefore may be terminated and is modifiable upon a showing of a substantial change in circumstances.(2) Lump-sum alimony is a set amount of money that is paid as alimony and not as a property division. It can be paid in one lump sum or it can be paid out in installments over time, but the end amount that is paid is fixed. For example, Husband agrees to pay Wife the sum of $100,000 in lump sum alimony. He can write her a check for $100,000 or they could agree for him to pay $10,000 per month for 10 months. This type of alimony is not modifiable and is only terminable upon the death of the supported spouse.(3) Rehabilitative alimony is another fixed sum of alimony that is paid in installments and is used in many cases to help the supported spouse financially while he/she obtains new training or completes their education that will allow them to become self-supporting. This type of alimony is terminable on the remarriage or continued cohabitation of the supported spouse and the death of either spouse, or when a certain event happens in the future (e.g. the supported spouse graduates from college). This type of alimony is also modifiable when an unforeseen event occurs that prevents the supported spouse from becoming self-supporting or if it frustrates the ability of the supporting spouse to continue to pay.(4) Reimbursement alimony can be paid in a lump sum or in installments and will end on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse. This alimony will not end and cannot be modified based upon changed circumstances in the future. The statute describes this form of alimony as an options the the Court believes it is "desirable to reimburse the supported spouse from the future earnings of the payor spouse based upon circumstances or events that occurred during the marriage." A good example of this is when one spouse dutifully supports the other spouse as they go through medical school. Once the doctor spouse graduates from medical school and begins to earn some substantial income he/she decides to divorce the spouse that supported him/her through school. This allows the non-doctor spouse the opportunity to benefit from the investment they made into the family's future income.
Factors Considered by the Family Court to Determine Alimony in South Carolina
SC Code §20-3-130(C) sets forth the factors that the Family Court must consider when determining whether to award alimony and how much alimony should be awarded:(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.
