Family Law

By working together, spouses are often able to make decisions regarding their issues without any court intervention. When such agreements are reached, it means that the parties involved have settled their case. When a couple has settled their disagreements, their lawyers will present the agreement to the court and request that the judge grant approval of the agreement. If the court finds the agreement fair, reasonable, and voluntary – then the agreement will become an official court order once signed by the judge.

When spouses have separated, but do not have grounds for divorce, once can file for separate maintenance and support which will resolve all of the issues arising out of the breakup of the marriage – except for the issue of divorce itself. The court will determine child custody, visitation, child support, property division, debt allocation, and any alimony. Separation officially begins on the day that the spouses no longer live together.

In South Carolina, there are five grounds for divorce: separation of the spouses for a least one year (also referred to as the no-fault divorce), adultery, physical cruelty, habitual drunkenness (alcohol or narcotics), and desertion. The proof that is required to allow the court to grant a divorce for one of these five reasons depends on the individual circumstances. The lawyer will inquire about the situation and advise the client about their case. Testimony from a third party will be requested as well. South Carolina law requires that a family court judge make a specific finding that reconciliation is not possible before a divorce can be granted.

If spouses cannot agree on how to divide their marital property between themselves, the family court will make the decision for them. Marital property usually includes all assets or debts acquired during the marriage – with certain exceptions for things such as inherited property or gifts from outside of the marriage. The attorney will advise the client on what is to be considered as marital property.

When parents cannot agree on who should have custody of their minor children, then the court must decide. Custody litigation is an expensive procedure and often very emotional. Both parents should look honestly at their new living conditions, available time, and other resources to fully consider which parent can provide a better home life for their children. Because neither parent automatically has a legal right to custody, the court will consider the best interests of the children.

The court may order joint custody or shared custody, but will seldom do so unless the parties agree to the joint or shared custody. Children who have reached an appropriate level of maturity may express their preference to the judge at the judge’s discretion. The judge is required to consider the child’s preference. The weight given to the child’s wishes depends upon the maturity and basis of the child’s opinion. However, a child’s preference is not controlling. Minor children may be appointed guardians ad litem to represent them in court.

Guardians ad litem conduct independent investigations and make limited recommendations for the court. Noncustodial parents can be awarded periods of specified visitation with their children. If circumstances surrounding custody and the child’s best interests change substantially, the family court can then order a change of custody or visitation.

A lawyer’s job is to represent their client’s best interests in legal proceedings and in court. When the client is properly advised of their legal rights and obligations, they can better understand what a divorce settlement should involve. The attorney may advise the client on how the court would proceed if an agreement is not reached. By providing both practical and legal advice, the lawyer helps guide the client throughout the divorce process.

One lawyer cannot represent both spouses. While many lawyers have a specific fee for a simple, uncontested divorce, the fee for most divorces depends on the amount of time a lawyer and staff must spend working on the case. This will depend on whether the case is contested and whether there are issues of custody, support, and property division. The lawyer should discuss the charges involved in a case and any payment options, and in certain cases, the court can order one spouse to pay all or part of the other spouses’ legal fees and related expenses.