Under South Carolina law, marital property is defined as all real and personal property that was acquired by the parties during the marriage that is owned when marital litigation is commenced, regardless of how legal title is held. This definition is similar to the definition of marital property that is used in other “equitable distribution” jurisdictions.
If the parties are unable to agree on how to divide their property, the Family Court has the authority to do so, either in the context of a divorce proceeding or a separate support and maintenance action. The Family Court divides the property in accordance with the rules of equitable apportionment that are delineated in South Carolina case law and divorce statutes.
The Family Court addresses marital property through the following, sequential four-step process:
The South Carolina Code sets forth specific criteria the court must weigh in determining what would be the most equitable apportionment of marital property. The fifteen individual criteria, as set forth in the South Carolina Statutes, are as follows:
In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:
The court’s order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.
(See South Carolina Code, § 20-7-472).
Venue (the county where you file your complaint) is determined by the residence of either you or your spouse. Section 20-3-60 of the Code of Laws of South Carolina provides as follows:Actions for divorce from the bonds of matrimony or for separate support and maintenance must be tried in the county (a) in which the defendant resides at the time of the commencement of the action, (b) in which the plaintiff resides if the defendant is a nonresident or after due diligence cannot be found, or (c) in which the parties last resided together as husband and wife unless the plaintiff is a nonresident, in which case it must be brought in the county in which the defendant resides.
South Carolina law provides for both no-fault and fault-based divorces. Because fault does not affect the financial outcome of a divorce, most divorces are filed on the basis of no-fault (continuous separation for one year or more).The South Carolina Constitution provides:
Divorces from the bonds of matrimony shall be allowed on the grounds of adultery, desertion, physical cruelty, continuous separation for a period of at least one year or habitual drunkenness.
There many reasons why many divorcing South Carolina couples choose to resolve their disputes by entering into marital separation/settlement agreements, rather than having their financial issues resolved by a court. One of the main reasons is cost. In South Carolina, a contested divorce case (one in which the issues have not been resolved by settlement) can involve tens of thousands of dollars in legal fees, and a trial can last for days. In contrast, a hearing to finalize a divorce in which the parties have entered into an agreement often takes less than 15 minutes!.
Under South Carolina law, marital separation agreements are generally enforced, even if the agreement sets forth a financial settlement that is different than what the court would decide. The South Carolina Court of Appeals has held that the family court “must enforce an unambiguous contract according to its terms regardless of its wisdom or folly, apparent unreasonableness, or the parties’ failure to guard their rights carefully.” Lindsay v. Lindsay, 328 S.C. 329, 340, 491 S.E.2d 583, 589 (Ct. App. 1997). Marital separation agreement (like other types of agreements) are subject to general principals of contract law. Except for provisions that are ambiguous or unclear, you should anticipate that the terms set forth in your marital settlement agreement will be enforced by the Family Court.
An agreement relating to alimony may be file with the Family Court, even if there is no divorce proceeding pending between the parties. The parties may include in their agreement a provision providing that the agreement is not subject to modification by a court
After executing your marital settlement/separation agreement, your divorce case can proceed quickly and without the lengthy and repeated court appearances that you would face if your divorce case were “contested.” You submit the marital agreement to the Family Court in the South Carolina county where you reside, with a request that the separation agreement be incorporated into a judgment of divorce. By merging an agreement into a divorce decree, the Family Court transforms it from a contract between the parties into a decree of the court. Emery v. Smith, 361 S.C. 207, 214, 603 S.E.2d 598, 601 (Ct.App.2004). “With the court’s approval, the terms become a part of the decree and are binding on the parties and the court.” Id. (quoting Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983)). “Thereafter, the agreement, as part of the court order, is fully subject to the family court’s authority to interpret and enforce its own decrees.” Id. at 214, 603 S.E.2d at 601-602; see Terry v. Lee, 308 S.C. 459, 462, 419 S.E.2d 213, 214 (1992) (stating the family court has exclusive jurisdiction to determine the rights of the parties under an agreement incorporated into a family court decree).
In South Carolina, issues relating to property, children, and support may be resolved by spouses in a marital settlement agreement. You can resolve these issues before beginning a divorce case. By resolving these matters privately, you can avoid the necessity of incurring the enormous expense, stress and uncertainty that is associated with a contested divorce matter. The only issue pertaining to the end of a marriage that cannot be contained in a separation agreement is the divorce itself. If you have already resolved your differences by entering into a marital settlement agreement, you will have an easy and inexpensive divorce that you can obtain with a South Carolina Uncontested Divorce Kit.
Our South Carolina separation agreement forms include detailed, sample provisions for dealing with child support under South Carolina law. In your agreement, you may include an amount of child support that conforms to the presumptive amount of child support payable under the South Carolina Child Support Guidelines. In the alternative, you may agree upon a support amount that deviates from the amount presumptively payable under the South Carolina Support Guidelines. We offer both customized and blank agreements. If you select a customized separation agreement, we prepare a fully customized agreement for you based on information that you provide to us through an online questionnaire. The blank South Carolina separation agreements are less expensive, and available for immediate download in MSWord format.
The South Carolina Child Support Guidelines set forth varying amounts of child support based on whether the parents have a shared custody arrangement or a sole custody arrangement. Shared physical custody means that each parent has visitation with the children overnight for more than 109 overnights each year (30%) and that both parents contribute to the children's expenses in addition to the payment of support. Shared custody is based on overnights -and is not the same thing as shared/joint legal custody, which refers to decision -making authority of the parents. Where there is shared custody, the amount of child support is less than in situations involving sole custody.
In addition, the parent who maintains medical and dental insurance for the subject child receives a credit for the amount of the health insurance premium attributable to the children. If there are extraordinary medical expenses, the parent who pays for those expenses may receive a credit for the amount actually paid.
If you use our customized separation agreement service, we will calculate the amount of child support payable based on income and other information that you provide to us. If you decide to downloadable a blank South Carolina Separation Agreement, you make those calculations yourself.
You can review the South Carolina Child Support Guidelines and related information about Child Carolina Child Support at the following websites:
At what age is a child deemed emancipated for purposes of child support under South Carolina law?
Generally, a parent's child support obligation terminates when the child reaches the age of 18 years. Section 63-3-530 of the Code of Laws of South Carolina provides that: orders for child support run until the child is eighteen years of age or until the child is married or becomes self-supporting, as determined by the court, whichever occurs first; or without further order, 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 years of age, whichever is later; or in accordance with a preexisting agreement or order to provide for child support past the age of eighteen years; or in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.
Is the amount of child support payable under the South Carolina Child Support Guidelines based on gross income or net income?
The presumptive amount of child support provided for under the South Carolina Child Support Guidelines is based on gross income. Gross income is defined as "income from any source including salaries, wages, commissions, royalties, bonuses, rents (less allowable business expenses), dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits (except SSI), workers' compensation, unemployment benefits, Veterans' benefits and alimony. The court is also permitted to "impute" income to reflect a party's non-income producing asset.
If the parents exercise "shared parenting", is child support adjusted to reflect the additional expenses incurred by the payer of support?
Yes. Regulation 114-4730(A) of the South Carolina Code (Supp.2006) provides that "[w]hen both parents are deemed fit, and other relevant logistical circumstances apply, shared custody should be encouraged…." The regulation states further that shared custody adjustments are advisory, not mandatory. Id. Additionally, if each parent has court-ordered visitation with the children overnight for more than 109 nights each year and both parents contribute to the expenses of the children in addition to the payment of child support, the court may make a "shared custody adjustment," which "shall be calculated using Worksheet C." Id. The regulation goes on to explain that "if the 109 overnights threshold is reached for *253 shared physical custody, this adjustment may be applied even if one parent has sole legal custody." Id.
Can parties agree on an amount of child support that deviates from the presumptive child support obligation provided for under the South Carolina Child Support Guidelines?
Generally, yes. However, if the amount deviates from the presumptive child support payable under the Guidelines, the Family Court will only approve it if it is fair and reasonable. In addition, if the agreement was reached without representation by counsel, the court must determine that any party who was not represented by an attorney had a thorough understanding of the agreement. The court has a duty to determine that the subject children's best interests are served.
What if a parent is unemployed?
If the court finds that a parent is voluntarily unemployed or underemployed, it may calculate child support based on a determination of his or her potential income. This is called "imputed" income. If a parent is unable to work because he or she must care for young children, this factor may be considered.
How can I determine the amount of child support payable under the Guidelines based on my income and other circumstances?
South Carolina has free and easy to use child support calculators and charts. The following site may be useful for you:
The calculator is easy to use and free of charge. The guidelines consider the income of each parent, number of unemancipated children, and custody arrangement (sole custody vs. shared custody).
What about child support for the children?
Ordinarily, the Family Court requires coverage for the children by the parent who can obtain the most comprehensive coverage through his or her employer or otherwise, at the most affordable cost. The parent providing medical/dental insurance receives a credit for the cost of including the children on his or her insurance policy. If this amount cannot be verified, the total cost of coverage, divided by the total number of persons covered by the policy, and then multiplied by the number of children in the support order, is used to determine the incremental cost of coverage.
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