Cecily Zamora
Common-law marriage has existed for centuries in South Carolina. However, in 2019, the state's Supreme Court ruled that no new common-law marriages could be formed. This has caused confusion for couples, especially those who were in a common-law marriage before the ruling. If you are in a common-law marriage in South Carolina and are seeking a divorce, it is important to understand your rights and the legal process. While the specific steps may vary depending on your unique circumstances, there are some general considerations to keep in mind when navigating a divorce from a common-law marriage in the state.
| Characteristics | Values |
|---|---|
| Common law marriage validity | Valid for marriages established before July 24, 2019 |
| Common law marriage requirements | Cohabitation, representation as a married couple, and other key requirements |
| Divorce requirements | Grounds for divorce, witness verification, separation for no-fault divorce |
| Divorce process | Filing Summons and Complaint, serving spouse, court hearing |
| Divorce considerations | Child custody, visitation, support, alimony, property division, spousal benefits, legal representation |
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What You'll Learn
Common-law marriages in South Carolina after 2019
In South Carolina, common-law marriages are recognised as equal to traditional marriages, and as such, the divorce process is similar. Common-law marriages that were established before 24 July 2019 are still considered valid and hold the same legal rights as ceremonial marriages. This includes the requirement to obtain a legal divorce if the relationship ends.
To initiate a divorce, one spouse or their attorney files a Summons and Complaint, stating the grounds for divorce and how they wish to divide marital assets and debts. If there are children from the marriage, child custody, visitation, and support are also included in the Complaint. The other spouse then has 30 days to respond to the allegations and outline how they wish the Court to address the issues.
In South Carolina, marital property is not guaranteed to be divided equally between divorcing spouses. Instead, property is distributed in a "fair and equitable" manner, taking into account the circumstances of the marriage and individual spouses. Judges consider factors such as the length of the marriage, misconduct of the parties, and custody of children when dividing property and debt.
It's important to note that there are many requirements for a common-law marriage to be recognised as valid in South Carolina. Couples must live together and present themselves as a married couple to others, but there is no specific timeline required.
If you have questions about common-law marriages or divorce in South Carolina, it is recommended to consult a family lawyer or the South Carolina Bar Lawyer Referral Service.
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Grounds for divorce
To obtain a divorce in South Carolina, you must have grounds for divorce. If there are minor children from the marriage, child custody, visitation, and support would be included in the Complaint.
- Adultery, defined as a sexual relationship between a married person and someone other than their spouse, even if it happens while the couple is separated.
- Physical cruelty, such as one spouse beating the other, usually over a period of time. One extremely serious or life-threatening beating may also be grounds for divorce. Mental abuse or cruelty is not a ground for divorce in South Carolina.
- Desertion, when one spouse leaves the home without a good reason and stays away for a year against the wishes of the other spouse.
- One year's continuous separation, when both spouses decide to live in separate homes for one full year. This is considered a "no-fault" ground.
- Habitual drunkenness or drug abuse.
It's important to note that South Carolina does not recognize "legal separation." Instead, the South Carolina Family Courts issue Orders of Separate Maintenance and Support, which provide temporary details regarding child custody, visitation, and support arrangements, as well as the maintenance of marital assets and payment of marital debts.
If you were in a common-law marriage before July 24, 2019, it is still considered legally valid, and you must obtain a legal divorce to dissolve it. Common-law marriages give couples the same legal rights and responsibilities as a traditionally licensed marriage. However, as of July 24, 2019, South Carolina abolished all new common-law marriages.
Divorces can be complicated, especially when there are issues of custody, support, or property involved. It is recommended to consult a lawyer for specific advice regarding your situation.
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Witness requirements
In South Carolina, a common-law marriage is considered valid if it was established before 24 July 2019. After this date, the state abolished all new common-law marriages.
Common-law marriages are considered equal to traditional marriages in the eyes of South Carolina law. Therefore, the divorce process for common-law marriages is similar to that of traditional marriages.
When filing for divorce, a witness is required to verify the truth of the claim. This witness cannot be a child of the marriage. The witness must testify that the couple lived together and held themselves out as husband and wife. There is no specific timeline for how long the couple must have lived together, but they must have cohabited for an extended period.
If there are minor children from the marriage, child custody, visitation, and support would be included in the divorce proceedings. In such cases, the court will appoint a guardian ad litem to interview parents, children, family members, friends, school personnel, and other people involved in the family's life. The guardian ad litem will also collect evidence regarding the children to make a recommendation to the court for the best custody arrangement.
If there are marital assets and debts, the witness may also need to provide information about these to help the judge determine a fair division. The judge will consider factors such as the amount each party contributed to the property, the incomes of the parties, the length of the marriage, and misconduct (fault) of the parties.
It is important to note that the witness should not be a lawyer or legal advisor. If you have questions about the law or the divorce process, you should consult a lawyer.
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Alimony and spousal support
Alimony, or spousal support, is one of the most challenging issues to resolve in a divorce case. It is a court-ordered payment from one spouse to the other during and after the divorce. In South Carolina, alimony is not awarded to punish the paying spouse but to help the receiving spouse maintain their standard of living. The calculation of alimony is based on many factors and is generally up to the judge's discretion.
The court may grant alimony to a spouse if they are entirely dependent on their partner. For example, a stay-at-home parent or spouse who does not have a stable income. The court may also award alimony for a temporary time to help a spouse get back on their feet, for a specific purpose such as going back to school, or on a permanent basis.
There are several types of alimony in South Carolina:
- Permanent periodic alimony: This is the most common form of alimony in South Carolina. It is typically awarded when the court finds it appropriate for one spouse to assist in the ongoing support of the other spouse. It is usually paid as a specified amount each week or month until one spouse dies, the supported spouse remarries, or the supported spouse cohabits with a romantic partner for 90 days or more.
- Rehabilitative alimony: This type of alimony is awarded to a spouse who relied on their partner for financial support to become self-supporting. It terminates if the supported spouse remarries or cohabitates, if either spouse dies, or upon the occurrence of a specific event in the future, such as the supported spouse finishing a degree program and finding employment.
- Lump-sum alimony: The recipient is awarded a specified amount of money, which can be paid all at once or in monthly installments. Lump-sum alimony terminates once the full amount has been paid or if the supported spouse dies.
- Reimbursement alimony: This type of alimony allows a spouse to recoup the money spent on the other spouse's career, education, or earning abilities. For example, if one spouse worked full-time to pay for the other's education, the court may order reimbursement alimony as repayment.
- Alimony pendente lite: This is temporary alimony during the divorce process, meant to provide financial support while the divorce is pending.
It is important to note that alimony can be cut off if the spouse receiving alimony moves in with a new romantic partner. The paying spouse can request that the court terminate the alimony after the recipient lives with a new partner for 90 days. Additionally, failure to pay court-ordered alimony is serious, and if found guilty of violating the order, a judge has several options to enforce compliance.
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Property ownership and distribution
In South Carolina, the family court has the authority to divide "marital property" as part of any divorce or separate maintenance action. Marital property is defined as real or personal property acquired during the marriage through the use of marital funds or through the sale of additional marital property. Real property includes real estate, while personal property includes items like cars, boats, or household items of value. Shared debts between spouses are also typically included in marital property.
Non-marital property, on the other hand, includes gifts from third parties to either spouse during the marriage and any property inherited by either spouse during the marriage, unless the receiving spouse takes action to indicate that they wish for the property to be shared with the other spouse, such as deeding real property in both spouses' names.
When it comes to dividing marital property, the judge considers various factors to determine a fair and equitable distribution, including:
- The value of the individual items of property, including any encumbrances such as loans or mortgages.
- The length of the marriage.
- Each spouse's contribution to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including non-monetary contributions such as sacrificing career advancement to care for children or the household.
- The incomes of the parties.
- Misconduct (fault) of the parties.
- Custody of children.
- Pension and retirement funds.
It's important to note that equitable distribution is typically done once and cannot be modified without both parties' consent. However, exceptions include when the parties agree to reserve some or all equitable distribution issues or when the court reserves jurisdiction to divide designated items of property.
In the context of common-law marriage, couples can seek the family court's assistance in dividing their property. However, if the parties were merely living together in a romantic relationship and were not married, they must file a partition action in circuit court to divide their property.
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Frequently asked questions
Common-law marriage is a state-recognized marriage agreement where spouses choose not to purchase a marriage license or have a ceremony performed by a legally recognized officiant.
If your common-law marriage was established before July 24, 2019, you can file for divorce on the same grounds as a traditional marriage. This includes habitual drunkenness, desertion, and one year's continuous separation. You must have a witness to verify the truth of your claim, and it is recommended that you have a lawyer with you if at all possible.
As of July 24, 2019, South Carolina abolished all new common-law marriages in the state. If your relationship began after this date, you will need a marriage license and to undergo an actual ceremony to be considered married.
Common-law marriages in South Carolina offer the same legal rights and responsibilities as a traditional marriage, including spousal benefits, the ability to file joint tax returns, inheritance rights, and spousal support obligations/eligibility for alimony payments if the couple separates.
