A COMPREHENSIVE GUIDE FOR DIVORCING COUPLES Divorce In .

A COMPREHENSIVE GUIDE FOR DIVORCING COUPLESDivorce in South CarolinaPiecing It All TogetherBY STEPHAN FUTERAL, ESQUIRECOPYRIGHT FUTERAL & NELSON, LLC, ALL RIGHTS RESERVED

Copyright NoticeDivorce in South Carolina - Piecing It All TogetherA Free Guide for Divorcing CouplesStephan V. Futeral, Esq. 2019 Futeral & Nelson, LLC, All Rights Reservedwww.charlestonlaw.netThis book contains material protected under International and FederalCopyright Laws and Treaties. Any unauthorized reprint or use of this materialis prohibited. No part of this book may be reproduced or transmitted in anyform or by any means, electronic or mechanical, including photocopying,recording, or by any information storage and retrieval system withoutexpress written permission from the author/publisher.i

ForewordWe all know that divorces happen far too often. For each new client I meet, Ialways explore with them the possibility of trying to save their marriage. In afew situations, I am happy to say that my clients were able to work out theirdifferences and create a stable marriage. However, staying together is notalways an option, particularly in cases where one spouse is abusive orunfaithful.Nothing in life prepares us for a divorce. For most people, the thought ofgetting a divorce is highly emotional and, in a word, scary. Everythingappears to be at stake and, all at once, unstable - your finances, yourrelationship with your children, and the future of your family. Your head maybe swirling with so many concerns at once. You may be looking for answersto set your mind at ease and to help you understand what you are facing inyour divorce. That’s why I’ve put together this book to help guide youthrough the process of a divorce in South Carolina and to explore someother important issues that typically arise in family court. It’s my sincerehope that after you’ve read it, many of your concerns will be laid to rest andmany of your questions will be answered.Best wishes,!Stephan Futeral, Esq.ii

About the AuthorDisclaimerStephan Futeral has been a family law attorney since 1993. HeThis book is for informational purposes and is not intended towas a judicial clerk for the Honorable C. Tolbert Goolsby, Jr.,give detailed legal advice. Transmission and receipt of this bookJudge of the South Carolina Court of Appeals, and he has been adoes not constitute an attorney-client relationship. Stephanlaw professor at the Charleston School of Law. He serves as aFuteral practices law in South Carolina and he does not seek toGuardian Ad Litem for children in family court and he is a certifiedrepresent anyone in any jurisdiction where this book does notfamily court mediator. He practices law in Charleston, Southcomply with applicable laws and bar rules. Readers should notCarolina with the law firm of Futeral & Nelson, LLC.act upon the information in this book without first seeking theFor more information on Stephan Futeral’s professionaladvice of an attorney licensed to practice in your area.background, please tap here.Tap to follow Stephan Futeral on:iii

C HAPTER 1The Law“Divorce is a declaration of independence withonly two signers.” Gerald F. LiebermanFamily court is the last place anyonewants to visit. The laws can be confusingand intimidating. To make the rightchoices in your divorce, you need anunderstanding of the law. In this chapter,we’ll cover all the basic legal issuesinvolved in a divorce so you can begin totake the right steps in your divorce.

S ECTION 1Grounds for DivorceThere are five (5) grounds for divorce in South Carolina adultery, habitual drunkenness or narcotics abuse, physicalcruelty, and desertion for one year are “fault’ grounds fordivorce. The fifth ground, one year’s continuous separation, isconsidered a “no-fault” ground for divorce.1. FAULT GROUNDS FOR DIVORCEI N T HIS S ECTION1. Fault Grounds for Divorce2. No-Fault Ground for Divorce3. Defenses to Fault4. Annulment5. ReconciliationThese grounds are based on the fault of one or more of theparties. If there is a determination of fault, that can impactwhether one spouse pays for the other spouse’s attorneys feesand can also be a factor in deciding how much alimony shouldbe paid and how to divide the parties’ assets.AdulteryTo establish adultery, you don’t need to prove it actuallyhappened. Instead, you can prove adultery by showing“inclination and opportunity.” Inclination is established whenyou can show that a spouse had a romantic interest outside ofthe marriage. For example, if the spouse joined online datingsites or sent romantic texts and emails to another person, thatis “inclination.” Opportunity is established when you candemonstrate that the spouse had a chance to act upon theirinclination. For example, if a husband spends the night in ahotel room with a woman other than his wife, that isopportunity.5

Habitual drunkenness or narcotics abuseTo prove this ground, you must show that your spouse’shabitual abuse (not on a single occasion or rare occasions) ofalcohol or narcotic drugs caused the marriage’s breakdownand that the abuse existed at or near the time of filing fordivorce. There are many ways to prove that the abuse causedthe marriage’s breakdown. For example, your spouse mayhave lost their job due to drinking or drugs or your spousemay be spending the family’s money on drugs or alcohol.Physical crueltyPhysical cruelty are acts of physical violence (hitting with abaseball bat) or circumstances where a spouse’s conductcreated a substantial risk of death or serious bodily harm(swinging a baseball bat but missing). Recently, the SouthCarolina Court of Appeals decided that a wife was entitled to adivorce on the grounds of physical cruelty based on a singleassault by her husband when he shoved her into a wall,verbally abused her, and then broke her telephone when shetried to call for help which left the wife fearful for her safety.The Court also noted that the wife had testified to otherthreatening events that ended in the assault all of whichindicated that the husband had intent to seriously harm hiswife.In South Carolina, the spouse alleging physical abuse mustprove his or her case by a “preponderance of the evidence,”which is evidence that convinces the court of its truth. Thefamily court judge will make the ultimate determination, andyour divorce lawyer will be able to review the facts of yourcase and what evidence you have and to help you decide if youhave enough to evidence to prove your case.Under South Carolina law, to be a ground for divorce, thephysical cruelty must be “actual personal violence, or such acourse of physical treatment as endangers life, limb or health,and renders cohabitation unsafe.” A single incident of assaultcan be sufficient physical cruelty. Also, actual physical contactor bodily injury isn’t required to seek a divorce for physicalcruelty if the act was (1) life threatening, (2) indicative of anintention to do serious bodily harm, or (3) of such a degreethat there appears to be a risk of serious bodily harm in thefuture. The family court will consider whether the abuse wasprovoked by the victim, but even if provoked, it will considerwhether the abuse was proportionate to the provocation. Forexample, in one South Carolina case, the court denied adivorce on the ground of physical cruelty. The court foundthat “the altercation leading to the parties’ estrangement wasthe only incident of alleged physical cruelty” and that thespouse who alleged abuse “may have been the aggressor inanother incident.”Evidence of physical cruelty can come in many forms. Ofcourse, the abused spouse may testify about the other spouse’sactions. Others may have witnessed the event(s). Witnesseswho didn’t actually see the event might still be able to testifythat the alleged victim was distraught or frantic just momentsafter the alleged incident or might testify that they saw freshinjuries. These witnesses are used to corroborate the6

testimony of the victim. Sometimes, photographs of injuriesmay be introduced into evidence. It is possible that the 911recording of the call to the police is introduced, although wehave seen these calls actually disprove the claims as well. Forexample, if a spouse calls 911 and says that he or she was justattacked seconds ago, but the person is calm and collected, itcan hurt that person’s credibility. Evidence can come in manyshapes and forms, and if you are seeking to prove physicalcruelty, use your common sense and give your lawyer ideas tohelp find valuable evidence in your particular case.If the alleged abuser is criminally charged with criminaldomestic violence (CDV) or assault, sometimes the person willbe convicted of the charge or plead guilty. In either event, thatperson won’t be able to take a different position in familycourt and claim that the abuse never occurred.Other than being a ground for divorce, physical cruelty canhave drastic effects on a divorce case. If custody is involved,the abuser is unlikely to get custody and their visitation maybe severely restricted or they may have none. Also, physicalabuse is a factor for the court to consider when awardingalimony or when dividing the marital property. For example,in one South Carolina case, the family court awardedpermanent alimony on a marriage that was barely over oneyear long where one spouse was abusive on repeatedoccasions. Also, at a temporary hearing, the non-abusivespouse might have a better chance of getting possession of thehome while the case is pending.Desertion for one yearThis is not a ground that we see in family court. Instead, weusually see spouses assert one year’s continuous separation.You can seek a divorce on fault grounds even though youaren’t yet separated from your spouse. If the divorce is basedon fault, the family court can’t conduct a hearing until sixty(60) days after filing for a divorce and it can’t grant thedivorce until ninety (90) days after filing for the divorce.2. NO-FAULT GROUND FOR DIVORCEOne year’s continuous separationTo obtain a divorce on the ground of one year’s separation,the year starts to run the moment the parties separate. Proofrequires testimony by the spouse asking for the divorceestablishing that the parties haven’t cohabited (lived togetherin the same house) for more than one year and anindependent witness who testifies to the same thing.3. DEFENSES TO FAULTCondonationCondonation is when a spouse remains in the marriage eventhough they are aware that the other spouse committedadultery, abused drugs or alcohol, or is physical abusive. Ifyou condone the act(s), then you may not be entitled to adivorce on fault grounds. However, if the forgiven spouse7