Divorce Lawyer South Carolina
Divorce and Legal Separation
Nothing in life prepares us for a divorce. For most people, the thought of getting a divorce is highly emotional and, in a word, scary. Divorce can be one of the most stressful events anyone will go through. The laws regarding divorce in South Carolina can be confusing and intimidating. The legal challenges that arise at the end of a marriage call for a skilled lawyer who will help you fight for what you deserve.
David Yokel is a divorce and family law attorney that brings over 35 years of experience helping hundreds of clients like yourself. When you are in a legal battle you need an aggressive divorce lawyer with a steady hand to help you navigate the challenges thrown at you. Preparation starts from the initial consultation with emphasis being placed on gathering all the relevant information and being ready for that day when you will have to tell your story to the judge. When you walk into the courtroom prepared you will have the confidence to make the best argument for your case.
David Yokel represents clients in the Greenville, Spartanburg, Anderson, Laurens, Pickens areas and throughout upstate South Carolina. Whether you can resolve issues through negotiation and mediation, or must go to court, David will provide you the strategies and advice to guide you through the entire process.
How to File for Divorce in South Carolina
Step 1 - Filing a Divorce Complaint
To commence an action for divorce begin the divorce process in South Carolina, one spouse must file a complaint for divorce. Your spouse must be served your the complaint. If appropriate, you will also file a Motion for Temporary Relief so that you can obtain relief on a temporary basis while your case is proceeding through the court system. This hearing is usually scheduled within 30 days. On limited occasions, you can seek an expedited or emergency hearing. David Yokel will be able to discuss the appropriateness of this during the consultation.
After serving the other party, there is a 30-day period in which they can file an answer to the divorce complaint. If your complaint is based on fault grounds, there is a 90-day waiting period after service before the divorce trial may, presuming all other relevant issues are worked out. However, if the grounds for the South Carolina divorce is based on desertion or the no fault ground of separation for 1 year, the divorce trial may be held and the decree issued after the answer has been filed or after the respondent has been adjudged to be in default, whichever occurs first.
If you’re on the receiving end of a divorce complaint and have been served the first thing is to not panic. Make sure you read the paperwork and determine what you’re being served with and any hearing dates. It’s important that you reach out to our divorce lawyer specialist as soon as possible to schedule an initial consultation to review your case and make sure your rights are protected. Make sure that you inform our staff that you’ve been served and the date of your court hearing so that we can schedule your consultation right away.
Step 2 - Getting a Temporary Hearing
In a contested South Carolina divorce, many times a party will request a temporary hearing which is usually is held at the very beginning of the case. On your paperwork, this may also be referred to as a Temporary or Pendent Lite hearing for temporary relief. The temporary hearing is where a judge will determine custody and visitation rights or the parenting plan, set child support, determine who stays in the house, who pays what bills and whether alimony is appropriate and how much. The premise of the hearing is to maintain the status quo as much as possible between you and your spouse because the rest of the case may take a while to fully resolve. At the conclusion of the hearing a temporary order will be issued that you will live by until the case is concluded, or another temporary order is issued for limited purposes.
A South Carolina Family Court temporary hearing is different from other hearings as there is generally no testimony taken at a temporary hearing. The parties are required to provide affidavits to the Court and are limited to 8 pages of affidavits for the 15-minute hearing. You must also provide a financial declaration for the judge to review. After reading the affidavits, the judge may allow for a short argument on the issues by the attorneys and will usually then make their ruling for the Temporary Order.
Step 3 - Gathering Evidence Through the Discovery Process
In order to make informed decisions about the division of your property, determine spousal support and address child custody, child visitation and other issues related to the minor children, discovery is the way the parties formally exchange information. It’s the legal process meant to extract information from the opposing party and provide it to your divorce lawyer. Gathering facts early on in litigation may help minimize costs in the long run by narrowing the issues that need to be addressed at trial or in settlement negotiations. Discovery involves numerous approaches, including: Interrogatories, Requests for Production of Documents, Depositions (both written and oral), physical and mental examinations, Requests for Admission, and others.
Step 4 - Attempting Resolution Through Mediation
It is to everyone’s benefit to minimize the expense of litigation so that you keep more of your hard-earned money. Attorney David Yokel believes that exploring settlement opportunities early in the process is important. Should the parties be unable to resolve the issues informally, then mediation is the process in your divorce where an independent third party, the mediator, assists the parties in their efforts to reach a mutually agreeable resolution to their contested divorce issues. Mediation is a neutral and confidential process where you and your divorce attorney will try to resolve as many issues as possible prior to your divorce trial. The premise is that with facilitation you and your spouse can voluntarily come to an agreement without going to trial and carry the burden of additional substantial expenses. The main benefit of a successful mediation is having a say in the final arrangement instead of a judge, who is a stranger to your situation, making those decisions for the both of you.
Preparation is essential for a successful mediation. You should have a short list of what it is you want. You should start with your ideal scenario but realize that you may need to make some concessions during the negotiation process. The mediator will attempt to find common ground so you and your spouse can agree to agree and finalize the case. If your spouse is asking for things that are unrealistic the mediator will attempt to influence them to adjust their expectations, so an agreement is possible. Should this mediation attempt fail the next step is to schedule a contested trial.
Step 5 - Presenting Your Case at the Divorce Trial
If you are the plaintiff, or the spouse that created the case, your case is presented first. You will be called to the witness stand, where you will be sworn in and asked to take a seat. After we have finished asking you questions, your spouse’s lawyer can ask you questions as well. We have the right to object to improper questions asked by the other attorney. It's a good idea to take a moment before you answer to collect your thoughts. Make sure you specifically answer the question that was asked and don’t make assumptions. You may also ask for clarification if necessary. When there are no more questions for you, we can call witnesses to that will support your positions. You and Attorney David Yokel will decide who will be your witnesses and the information to be obtained from each.
After you have presented all your witnesses, we “rest”. It is now your spouse's turn to present their witnesses. The same questioning occurs, only the roles are reversed. Your spouse's lawyer conducts the direct questioning, and your lawyer cross-examines the witness. After your spouse presents their witnesses, we can call witnesses to reply or refute what's been said (called rebuttal witnesses). After you've called your rebuttal witnesses, your spouse can do the same.
Understanding the Types of Divorce and Grounds in South Carolina
A no-fault divorce is a divorce in which the dissolution of a marriage does not require a showing of wrongdoing by either spouse. The way you can obtain a no-fault divorce in South Carolina is by "living separate and apart without cohabitation for a period of one year." The term "separate and apart" for the purpose of a no-fault divorce means that the spouses are not living together under one roof. This does not mean separate bedrooms. A divorce on this ground can be granted immediately once responsive pleadings are filed, or 30 days after the defendant is served if the defendant does not respond.
To get a no-fault divorce, you and your spouse must live separate and apart for one year prior to the divorce. This 1-year separation means 1 year of continuous separation—you and your spouse cannot have reconciled during the 1-year period!
A fault divorce is where one spouse is blaming the end of the marriage on the other spouse. These grounds are based on the fault of one or more of the parties. If there is a determination of fault, that can impact whether one spouse pays for the other spouse’s lawyer fees and can also be a factor in deciding how much alimony should be paid and how to divide the parties’ assets. To fall within fault divorce, you must meet the requirements of one of the following “fault grounds.”
The grounds for fault divorce in South Carolina are as follows:
- Habitual Drunkenness or Narcotics Abuse
- Physical Cruelty
The key point to keep in mind is that fault divorces in South Carolina may prevent a spouse from seeking alimony. The rationale behind this is that a spouse that caused the marriage to fail should not be further rewarded. If one spouse alleges one of the fault grounds for divorce, that spouse must prove it to the court with evidence.
To establish adultery, you must prove “inclination and opportunity.” Inclination is established when you can show that a spouse had a romantic interest outside of the marriage. For example, if the spouse joined online dating sites or sent romantic texts and emails to another person, that is “inclination.” Opportunity is established when you can demonstrate that the spouse had a chance to act upon their inclination.
Physical cruelty are acts of physical violence or circumstances where a spouse’s conduct created a substantial risk of death or serious bodily harm. Under South Carolina law, to be a ground for divorce, the physical cruelty must be “actual personal physical violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe.” A single incident of assault can be enough to prove physical cruelty only if the act is so severe and atrocious as to endanger life or if the act indicates an intention to do serious bodily harm or causes reasonable apprehension of serious danger in the future. The court will look at all the circumstances of the specific case when it determines what conduct is sufficient to be “cruel.”
Habitual Drunkenness or Drug Use
To prove this divorce on the grounds of habitual drunkenness or drug use, you must show that your spouse’s habitual abuse (not on a single occasion or rare occasions) of alcohol or narcotic drugs caused the marriage’s breakdown. You must also show that the abuse existed at or near the time of filing for divorce. Habitual drunkenness is the habit of frequently getting drunk but does not mean that the person must be continually drunk. There are many ways to prove that the abuse caused the marriage’s breakdown. For example, your spouse may have lost their job due to drinking or drugs or your spouse may be spending the family’s money on drugs or alcohol. The key is to collect and have this evidence at hand when going through the process.
The 4 Main Topics of a Divorce Case
When it comes to divorce there are 4 main issues that must be covered which are (1) Child Custody, Child visitation and/or parenting plan, (2) Child Support, (3) Property Division and (4) Alimony/Spousal Support. Whether any one of these issues is involved in your case depends on your specific circumstances Depending on your circumstances one or more of the divorce topics may not apply.
- Child Custody, Child Visitation and/or Parenting Plan
One of the most highly contested issues you will face during your divorce process is child custody. When determining who is awarded custody, the court will determine what is in the best interests of the minor child/children. The court looks to the fitness of the parents as well as many other statutory factors when considering placement and an appropriate plan. It’s best to decide what type of custody you want at the beginning of your divorce process to allow us to better advocate for your position.
- Child Support
Parents are legally required to provide financial support for their children while they are minors – even after divorce. In other words, child support is an obligation of both parents. The amount each parent is obligated to provide depends on several factors such as childcare expenses, health, dental and vision insurance.
- Property Division
The Family Court only has jurisdiction to equitably divide property (assets) and debts. The first thing that must be done is to identify the marital property and debts. Whether you acquired your property before, during and after marriage will determine how it is distributed upon the finalization of your divorce. Property usually acquired during your marriage is referred to as marital property. Property acquired before or after an action is filed is referred to as separate or non-marital property. Any inheritance or gifts from third parties is not marital property. There are always exceptions to these general rules so reaching out to an attorney and discussing the matter is very important.
- Almimony/Spousal Support
Spousal support, or alimony, is one of the most controversial aspects of divorce whether you are the one having to pay alimony, or you are the person who needs financial assistance. The court will need to determine the individual’s need and consider many factors including but not limited to the length of the marriage, employability, earning capacity, the ability to pay when determining how much spousal support to assign. You should be prepared to discuss all aspects of the family’s financial support throughout the marriage including the employment history. If you and your spouse don’t have minor children, child custody and support wouldn’t be taken into consideration. Another example is if you and your spouse have a similar level of income. In this case alimony may not be a consideration either. If child custody isn’t contested, then that topic doesn’t have to be covered but there are many things to consider that assist the family in avoiding issues that may come up in the future. If any of these topics can be crossed of your list, it will make the divorce process easier for both you and your spouse.
If these divorce topics can be agreed upon by each spouse, then the parties may have a Marital Settlement Agreement prepared to set forth the rights and obligations of the parties to be approved by the Court in a divorce hearing or the agreement can be submitted to the Court without a formal agreement. Speaking with the attorney can help you determine what is best for you and your family situation.
Contact a Skilled Divorce Lawyer
If you are seeking to get a divorce in updstate South Carolina area, call David Yokel for help. The first step in handling your situation is to get expert the legal advice you need. Contact our office by phone, email, text message or submit your information from our contact form and schedule a conslutation to review your case.