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Same Sex Divorce Guide in South Carolina

Same-sex couples in South Carolina have been able to marry since 2014 and along with the right to marriage comes the right to divorce. For same sex couples, divorce will not be that much different for you than for your friends in a heterosexual marriage. You will need to consider the division of your marital assets, along with child custody and child support. Alimony is also possible.

However, same-sex couples do have some unique needs, especially regarding child custody if the non-biological parent hasn’t yet adopted the child. Please reach out to Surasky Law Firm to speak with our Aiken, SC divorce lawyer about your goals for divorce.

Contested or Uncontested Divorce

Divorce can take years, but couples can streamline the process by negotiating with each other over the essential features of the divorce:

· Child custody

· Child support

· Alimony

· Division of marital property and debts

Some couples choose to intentionally minimize conflict, and they look for lawyers willing to work collaboratively. This is always an option. Whenever a couple reaches an agreement on a critical issue, they can include the agreement in a document and sign it. If they agree on all critical issues, they can have an uncontested divorce.

Couples who work well together can jointly file a divorce petition without a lawyer’s help. A judge will review your settlement agreement and typically signs off on it.

Grounds for a Same-Sex Divorce

To divorce, you need to give the court a reason, which is called the “ground.” South Carolina offers a no-fault option, which consists of living separately and apart for one year by agreement. That means not living in the home with each other. After one year, the judge can grant the divorce.

South Carolina also offers fault-based grounds. If you don’t want to go the no-fault route, you should see if you can fit your divorce into one of these categories:

1. Adultery

2. Abandonment for one year

3. Physical cruelty

4. Habitual drunkenness

There may be advantages to filing under a fault ground. For example, any spouse who committed adultery is prohibited by law from receiving alimony. Still, you will need to prove the fault with evidence with valid evidence.

Child Custody & Same-Sex Divorce

Couples can decide how to divide custody between themselves. However, same-sex marriages often present wrinkles. For example, the non-biological parent might never have adopted the children. This can happen if one wife carries the child and the other wife hasn’t gotten around to adopting, or one parent might have brought children into the marriage from a previous relationship.

If you haven’t established parental rights, then it’s very difficult to get custody or even a right to visitation. Although you might have served the parental role—and, in fact, everyone “saw” you as the second parent—divorce is about allocating custody rights, which you might not have. You should work closely with your lawyer.

When two parents can’t agree, a judge will decide child custody by analyzing the children’s best interests. There are many statutory factors judges consider in this holistic assessment, such as:

· The child’s preference, given his or her age.

· Each parent’s relationship with the child to that point.

· The capacity of each parent to meet the child’s needs.

· Each parent’s mental, emotional, and physical health.

· The stability of each parent’s home.

· How well each parent will help facilitate the child’s relationship with the other parent.

· Any history of domestic violence or child abuse.

Child Support for Same Sex Couples

South Carolina’s child support guidelines look at several factors, such as each parent’s income, the number of children supported, and other needs. Typically, the non-custodial parent will make a monthly child support payment to the custodial parent.

Here, too, it matters whether you are a legal parent. If you never adopted, then you might have no legal obligation to support the children when you divorce. This might upset the sole legal parent, who could be counting on monthly child support payments.

Division of Your Marital Property

Even couples in short marriages tend to accumulate assets and debts, and you need to divide them when you divorce. Couples have a free hand to divide them as they see fit, but if they can’t agree a judge will divide them equitably.

Divorce impacts only marital property—that is, property acquired while married. This includes any real estate you purchase, vehicles, and artwork, as well as wages earned and put in a bank account. Investments, like stocks and bonds, also count if obtained while married. The name on the account or asset doesn’t really matter when deciding if the asset is marital.

Some same-sex couples have been together for decades. They only married when it became legal in South Carolina. For example, you might have started living together in 1994 and then only got married in 2014. You have decades of combined income, assets, and debts. Dividing these pre-marital assets/debts is complex because the law technically considers only the assets obtained after marriage as “marital.” Work closely with an attorney to review all assets you accumulated during your relationship.

Alimony & Same-Sex Divorce

Same-sex spouses can also request alimony. Typically, alimony represents monthly payments from one spouse to the other after divorce, in the form of monthly payments or possibly a lump sum.

The law does not mandate alimony, although couples can agree to it in a divorce settlement agreement. A judge might also award alimony in certain situations. Judges use the same criteria for same-sex couples as they do for others.

Alimony can take many forms. It can be permanent, lasting until one spouse dies or the recipient spouse remarries. In other cases, a judge only awards rehabilitative alimony, which helps the recipient spouse get more education or find a job.

Judges have discretion, and your choice of lawyer can make a great deal of difference in terms of convincing a judge whether to award alimony (or not), as well as how much.

Need Assistance? Contact Surasky Law

Those leaving a same-sex marriage need the same legal advice and support as those in opposite-sex relationships. The good news is that Surasky Law Firm can help you every step of the way. Call our firm to schedule a consultation.


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