CONSIDERATION FOR FAMILY COURT: DIVORCE AND CHILD CUSTODY IN SOUTH CAROLINA
Deciding whether or not to seek divorce, particularly when children are involved in the marriage, is one of life's toughest struggles. As a Christian attorney in South Carolina, I have mixed feelings about representing divorce cases. I believe in marriage, and that ideally marriage is a life-long commitment. That is even more important for the sake of children. When I take divorce cases, I always do it on a refundable retainer basis so that clients never feel a financial incentive to go through with divorce. I tell clients that if they reconcile I will happily refund their retainer with the exception of what has been spent as a cost or earned as a fee. That aside, there are times divorce is warranted and so this article will cover a consideration of how to proceed.
In some cases, both parties to the potential divorce are in agreement that the marriage should end and parties are in general agreement about division of the marital estate and custody arrangements with children. In those cases, it is possible for a client to retain counsel with the idea that the attorney will help draft a settlement agreement between parties even prior to the filing of a divorce action. The attorney would have to make it clear to the other party they are retained to represent the retaining party but that they can work with both parties to come to settlement agreement terms. In that situation, the attorney will still likely recommend the other party seek some kind of legal counsel about the settlement, but that is not required to obtain a divorce.
If the parties come to a settlement agreement and sign, the attorney can then file a complaint signed by the party who hired the attorney, and answer joining the complaint signed by the other party (they document can be drafted by the attorney) along with a cover sheet, the filing fee and the settlement agreement along with a document showing the other party accepted service of the Summons and Complaint. After those documents are filed, or during the filing of those documents, the attorney can file a request for a hearing for court approval of the settlement and (potentially) the court's divorce of the parties. If the parties are filing on the no fault grounds of one year physical separation, the approval of settlement can happen after filing. The divorce action can also take place if they parties have been separated for the required one year. In that event, the party bringing the action must bring a witness to testify to the parties being separated for one year.
If the parties must wait a substantial period of time before the one year separation, they can still seek court approval of the settlement agreement, and later go back for the divorce action (after one year separation). If parties have agreed to divorce on fault grounds, they need only wait 90 days after the filing of the divorce action. In that event, the party bringing the action must bring a witness testifying to the fault ground and usually the hearing is for both approval of settlement and then divorce. In any settlement or divorce action, the court must make the final approval and determination. The court will have to review the settlement agreement and must consider "best interest of the child" when deciding to approve the agreement. The court could require a Guardian ad Litem be appointed before granting approval. However, if parties have come to agreement and the custody/visitation agreement is not objectionable the court will likely approve the agreement and divorce the parties.
If parties are not in agreement about the divorce or the terms of settlement and/or custody, the above method of divorce would not apply. In those cases, the party seeking the divorce would retain counsel to file and serve the Summon and Complaint on the other party. The other party could still represent themselves without a lawyer (Pro Se), but will likely retain counsel. On a future article, I will discuss the normal processes in a contested divorce.
If you need help with family court, divorce or child custody in South Carolina you can contact Attorney Bill Connor at:
The Bill Connor Law Firm
138 Centre St
Orangeburg, SC 29115
PHONE: 803 937 5571