Family law covers two broad areas: 1) marriage and the dissolution of marriage; and 2) child custody, visitation, and support. In South Carolina most family law issues are addressed in family court and most family court cases involve family law issues. Yet there is not 100% overlap. Juvenile delinquency cases are handled in family court but, while differing somewhat in procedure, are similar to criminal law cases and are often defended by criminal law attorneys, not by a family law attorney.. After the death of an alleged common-law spouse, any action to establish a common law marriage is handled in probate court. Elder abuse cases are handled in family court. Appeals of family court cases are handled by the Court of Appeals or Supreme Court. However, most, but not all, family law matters are handled by the family courts. Having an experienced family law attorney on your side can help you navigate the family courts.
Family courts not only handle the ending of a marriage, they also can address whether a marriage exists in the first place. One can file an independent action to establish the existence of a common-law marriage. One can even file an independent action to establish a common-law marriage did not take place. Similarly, when one attempted to enter a legal marriage but believes there was some impediment to marriage (such as one spouse lacking capacity or being married to someone else at the time of the marriage), one can file an action to annul the marriage. Consulting a family law lawyer can help you choose the best course of action for your unique needs.
The reason one might file an action to establish that no common-law marriage existed or to annul a marriage where an impediment existed is to prevent problems that might arise upon one’s death or subsequent marriage. If there is a subsequent claim of a common-law marriage, that spouse might be able to seek estate rights or might claim the other spouse has entered into a bigamous marriage. If one has concerns that one might be considered married even if one doesn’t believe they are, the safe option is to file an action to conclusively determine one’s marital status.
Most family court matters regarding marriage seek to end the marriage. When grounds for divorce exist at the time of filing, one can file for divorce. South Carolina has five grounds for divorce, four fault and one non-fault. The fault grounds are habitual intoxication, physical abuse, adultery, and one year’s desertion. The non-fault ground is one year’s continuous separation. When one needs family law services to address marital dissolution issues but does not yet have grounds for divorce, one can file an action for separate maintenance.
As part of any marital dissolution action, one can seek an equitable distribution of marital assets and debts and spousal support. If there are children born of the marriage, the family court can also address children’s issues.
Many marital dissolution issues cannot be modified once the initial marital dissolution case concludes. Property division and the ground for divorce cannot be changed in a subsequent action. If alimony is neither reserved nor awarded in an initial case, it cannot be modified in a new case. Some forms of alimony are modifiable upon a substantial change of circumstances or terminable upon other circumstances. Other forms of alimony cannot be modified and can only be terminated upon more limited circumstances. Consult an experienced family law attorney to see what is the best option for your case.
The family court can also decide matters regarding children’s custody, visitation, and support. Any issue involving children can be modified upon a showing of a substantial change of circumstances. Once a child turns age 18, the family court no longer has authority to decide custody or visitation issues. However, under certain circumstances, child support can be addressed despite a child turning 18. Most often these circumstances are when a child is still attending high school (in which case support can continue to age 19), where a child or the other parent needs assistance paying for a child’s college, or where an adult child is permanently disabled and one parent requires financial support for that child.
When children have allegedly been abused or neglected by their caregivers, the South Carolina Department of Social Services (DSS) can ask the family court to remove the children or require the caregivers to obtain treatment as a condition of keeping or obtaining return of their children. Such cases are addressed by a special section of the children’s code and having a family law attorney who is familiar with that code is vitally important to protecting a parent’s rights.
The family court has the ability to award third parties custody of, or visitation with, children. Typically, custody can only be awarded to a third party when both parents are dead, absent, or unfit. Under certain circumstances grandparents and siblings can be awarded visitation. Folks who meet the definition of de facto custodian can be awarded custody or visitation.
The family court can address matters of adoption. When one or both parents have not had their parental rights terminated or voluntarily relinquished, one must terminate those parental rights before the adoption can take place. In rare circumstances, one might terminate a parent’s parental rights even when no adoption is anticipated.
Any family court order that created obligations can be enforced. The enforcement mechanism is called a rule to show cause and seeks to hold the other party in contempt for violating the order. A family court can order up to a $1,500 fine, up to 300 hours of community service, and up to one year incarceration to obtain compliance with a court order. A substantial part of family law practice involves enforcing or defending enforcement of family court orders.
Family law is factually, legally, and procedurally complex. Some matters can only be addressed once, and if they are not properly handled then, then one can lose all rights. Other matters can be modified later on but only with a greater evidentiary burden. An experienced family law attorney can be vital to protecting one’s rights. For more information regarding Mr Forman’s family legal services, or if you wish to retain him to represent you as your family law attorney, please contact him.
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