This is an excerpt from an excellent article written by Charleston divorce lawyer, Melissa F. Brown.
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While every family is unique, with its own special areas of agreement and dispute, the processes involved in the resolution of family matters are often subdivided into identifiable categories within the Family Courts of South Carolina. This summary will examine the main stages of traditional Family Court cases. It is not intended to deal with every situation that may arise in matrimonial disputes, but rather, it is intended to give a general overview of the significant events that are often anticipated in a Family Court case. It will also discuss the manner in which this office approaches this sensitive area of negotiation and litigation.
When meeting with a potential client, an early question I pose is whether the client believes a possibility of reconciliation exists. Before I will initiate a suit, I seriously discuss and consider this question with the potential client. Only those clients who believe with a degree of certainty that their marital relationship will end should proceed in a divorce action. Divorce cases are devastating to the family, emotionally draining to all of the family members, and financially and emotionally expensive.
As a professional, I see a divorce as a matter of last resort. I often find clients are shocked by the many issues that are part of a divorce such as child custody, visitation, decision making rights, relocation, child support, alimony, property and debt division, tax matters, attorney fees, etc. My goal, therefore, is to examine whether other steps should be taken which might heal the relationship before an attempt to dissolve the marriage is initiated.
South Carolina has four fault grounds of divorce: adultery, physical cruelty, and habitual drunkenness or addiction to narcotic drugs. The fifth ground is considered no-fault and requires separation for a period of one year. In order to secure a divorce, the party who files must prove at least one of these grounds with legal evidence (for example: testimony, photographs, letters, hospital or physician records, reports from private investigators, etc.).
Unlike many states, there is not a provision in our laws for a “legal separation” in South Carolina. A couple is either married or not married. There is no other legal relationship. However, there is a step, which may be taken in the court– “An action for separate maintenance and support,” which resembles a legal separation. Generally, the same procedures outlined below will occur in a separate maintenance and support action. While, there are no clearly established grounds or reasons for a separate maintenance, one must generally show some cause why the marriage should be dissolved.
If circumstances are such that it is necessary to file suit, family law related matters are heard and determined in the Family Court of the State of South Carolina. Under the umbrella of “family law related matters” are divorce, actions for separate maintenance and support, child custody determination and modification, paternity identification, and actions related to alimony and support. We have Family Courts in each of our state’s 46 counties, and those counties are grouped together in Judicial Circuits.
In some states, a judge might hear many types of cases such as murders and contract disputes in addition to family law matters. In our State, we have the benefit of Family Court Judges who only perform Family Court work. This focus on matrimonial and domestic relations matters means that our judiciary is educated and experienced in the laws and the equities related to family matters, and they hear Family Court cases by choice rather than imposition.
The case must be initiated by a Summons and a Complaint. The Summons is the document that gives the other spouse notice that he or she will have 30 days to respond (by filing a document in the Court) to the allegations made in the document called a Complaint. The Complaint sets forth the factual and legal basis for seeking a divorce. I usually ask my clients to verify these claims under oath. A spouse’s responsive document is called an Answer or Answer and Counterclaim.
The Summons and Complaint, once approved by my client, are then filed in the Clerk of Courts Office in the County where the action takes place. The Court requires a $100.00 filing fee plus an additional $25.00 fee to file a motion. Upon filing, a Docket Number is assigned to that case; this number must be written on all pleadings and motions filed in the Court thereafter.
Next in the process is serving the other spouse with the Summons and Complaint. One spouse cannot simply hand a copy of the Summons and Complaint to the other spouse. Instead, these documents must be delivered by an independent third person. A private process server or a sheriff typically completes the act of Service on the other party.
Once a spouse is served, he or she has 30 days in which to respond to this complaint. This response is called an Answer or Answer and Counterclaim. The filing of an Answer and Counterclaim means that the opposing party is also asking for relief from the Family Court. The Counterclaim sets forth the opposing party’s version of the facts and law to defend against our lawsuit and may also ask for other relief from the Court. If that is the case, my client will then have 30 days to reply to the Answer and Counterclaim in a document called a Reply. This Reply sets forth my client’s factual and legal arguments as they apply to the Answer and Counterclaim.
The facts in a divorce document (Complaint, Answer, Reply and the like) must be as accurate as possible. Occasionally facts in a pleading will state “upon information and belief” which simply means that those facts were discovered from another source, but are believed to be true. If purposefully incorrect or untruthful statements are included in a pleading, the court will not look favorably upon the party who is making misrepresentations. Serious cases could result in perjury charges.
Once a divorce Complaint is filed with the Clerk of the Family Court, no final divorce can be granted in less than a period of three months. The exception to this general period is when a divorce is filed after the parties have been separated for more than one year and have reached an agreement. Then, the parties do not have to wait three months after filing to obtain a divorce.