Same-sex marriage became legal in South Carolina in 2015, after the decision of the U. S. Supreme Court in the Obergefell v. Hodges case.
This ruling finally meant that all couples, including those in South Carolina, who are in same-sex relationships were given the same rights as those in opposite-sex relationships. Today same-sex marriage is legal but legal advice on same-sex divorce is also on the rise.
It is important to know the specific divorce laws in South Carolina and more so for same-sex couples. Divorce entails special legal concerns, especially concerning property, children, and maintenance.
The laws governing same-sex marriages are changing and evolving and as such, it is essential to understand how they work when such couples decide to dissolve their marriage.
Grounds for Divorce in South Carolina
In South Carolina, as in many states, there is a list of ‘fault-based’ reasons for a divorce that are available to both same-sex and opposite-sex couples.
These grounds are divided into two categories: of the two major categories; the fault-based and the no-fault.
Adultery
Adultery is one of the many fault-based reasons for divorce. This is misconduct by one spouse that entitles the other spouse to a divorce; if one spouse has a sexual relationship with someone other than his/her partner, the other spouse can seek a divorce.
Some of the conditions that have to be met include; the couple has to prove that the other partner was cheating or involved in extramarital affairs, this can be supported by communication records or a witness who saw the partner cheating.
Desertion for One Year
Desertion, also referred to as abandonment, is the act of one spouse leaving the marital home without the permission of the other spouse without just cause, and without the intention of returning for one year.
The aggrieved spouse may proceed to institute an action for dissolution of the marriage on this fault ground.
Physical Cruelty
Physical cruelty includes any act of violence within the marriage or physical abuse by one partner on the other. The abused spouse can seek a divorce for this reason if there is a pattern of physical harm or threats of violence.
Police reports witness statements as well as medical records may be admissible as evidence.
Habitual Drunkenness or Drug Abuse
If one partner is habitually drunk or takes drugs and this is affecting the marriage, the other partner can seek a divorce based on habitual drunkenness or drug taking.
The substance abuse has to be current and must have caused a deterioration of the marriage.
Divorce Without Fault on the Ground of One Year’s Separation
In SC, there is also an option for an ‘irreconcilable differences’ divorce, meaning that none of the partners has to allege any wrongdoing on the part of the other.
This can be granted where the couple has been living apart for one year or more without reconciliation. This is normally the easiest and least controversial way through which couples who want to divorce can do so.
Key Legal Issues in Same-Sex Divorce
Like all other states, South Carolina same-sex divorce has many of the same legal questions as any other divorce but any same-sex couple would face certain specific challenges.
The most sensitive issues are the division of assets, child custody, and maintenance where biological and non-biological relationships, adoption, or surrogacy are at stake.
Property Division
Ownership of property in South Carolina during a divorce is governed by the provision of equitable distribution under the code section 20-3-10. This means that marital properties are shared equitably, though not proportionately between the two partners.
Marital property refers to all the property and liabilities that are acquired by the couple during the marriage period like homes, cars, bank balances, and retirement benefits among others.
The rights of same-sex couples are the same as the rights of opposite-sex couples where the issue of equitable distribution is concerned. However, problems may occur if at least one of the partners was in a union before same-sex marriage was legalized.
For instance, if the couple was in a domestic partnership or lived together before getting a legal marriage, it may be challenging to identify the onset of the marital estate.
Biological and Non-Biological Parenthood
In most cases, only one of the parents in a same-sex relationship may be the biological parent of the child, for example, in cases of surrogacy, sperm donation, or adoption.
Same-sex married partners who act as parents to a child may find it difficult to exercise their rights as parents if they have not legally adopted the child.
Although the non-biological parent may have been directly involved in the upbringing of the child, without legal status they may not have rights to the child and their rights may be challenged during the divorce.
Adoption or Surrogacy Considerations
To expand their families, gay and lesbian couples may seek adoption or contract with a surrogate. This means that where there is adoption, both parents have similar rights as far as parenthood is concerned.
Nevertheless, if one of the parents formally adopted a child or was a biological parent through surrogacy, the other parent may require a second parent’s adoption to gain legal parental rights.
In the absence of legal adoption or other legal acknowledgment, the non-biological parent may encounter problems with custody or visitation. On the other hand, the biological parents in the marriage are normally fully charged with parental responsibilities unless restricted by the court.
Rights that Both Parents Have
To avert such an issue, both parents should ensure that they obtain legal rights to their children, within the first instance through adoption or agreements.
Since both parties will be legally recognized, the custody determinations will be as in the opposite-sex divorce case where the court will consider the bond between the child and each parent, the capacity of each parent to care for the child, and the best interest of the child.
Same-Sex Couples’ Parental Rights and Child Custody
However, when the couple is a same-sex one in South Carolina, the question of parental rights and child custody may become problematic if only one partner has given birth to the child.
Even though the courts seek to safeguard the welfare of the child, there are times when the status of the non-biological parent may not be well understood. How these cases are managed by the courts and the significance of formal adoption cannot be overemphasized as it relates to same-sex couples who are co-parenting.
The way that the South Carolina Courts address the issue of parental rights
South Carolina courts determine the rights of the parents and the custody of the child with references to the homosexual parents provided that the interest of the child is considered.
However, where one parent is the biological parent of the child and the other is the Stepparent, the latter may not have automatic rights of custody and visitation.
In most courts, the biological parent is favored and therefore it is harder for the non-biological parent to speak in loco parentis without legal papers or adoption.
If both parents are legally established – either by birth certificates or legal adoption – the courts are equally blind to the difference between the two when awarding custody and visitation rights.
Potential Legal Challenges for Non-Biological Parents
Same-sex couples that have children through artificial insemination or other assisted reproductive technology may experience difficulty in the custody of the child in the event of a breakup if they have not legally adopted them.
Although the non-biological parents were at times the primary caregivers of a child, they may feel helpless to claim their rights without legal paperwork. Some of the common challenges include.
Lack of Legal Standing
If the non-biological parent has not formally adopted the child they may not have the legal right to sue for custody or visitation.
The court may honor the biological parent’s rights unless there is sufficient cause to do otherwise.
Disputed Parental Roles
If the biological parent challenges the non-biological one, it may be crucial to establish that the non-biological parent has been a de facto parent – a person who has assumed the role of a parent.
This often calls for proof of how involved the father was in the child’s life and the care that the child required.
Extended Litigation
Legal battles between biological and non-biological parents can take a longer time to be resolved.
If the non-biological parent has not obtained legal recognition, he or she may struggle with proving rights thus most of the time the case will take long to be decided and may even be very expensive.
Navigating the Legal System
Divorce is never easy, especially if one is dealing with the legal issues that affect same-sex marriage.
In South Carolina, one needs to understand the procedures followed in the process, the legal formalities that have to be complied with, and how to get professional help when going through the process.
The Procedure for Divorce in South Carolina
Navigating the divorce process in South Carolina can seem overwhelming, but understanding the basic steps can make it more manageable.
From filing the initial paperwork to meeting residency requirements and attending court proceedings, each phase plays a crucial role in finalizing a divorce.
Whether you’re pursuing a fault-based or no-fault divorce, knowing the procedure is key to ensuring a smoother legal process.
Filing for Divorce
The initial procedure in the process of divorce is to file a complaint in the family court of the county where one or the other spouse dwells.
The spouse filing the complaint is called the ‘plaintiff’, while the other spouse is the ‘defendant’. The complaint must state the reasons for the divorce: fault-based (adultery or abuse) or no-fault based on a one-year separation.
Residency Requirements
If both the spouses reside in the state the plaintiff must have been a resident of South Carolina for at least 3 months before filing the case.
If only one of the spouses resides in South Carolina, the plaintiff must have been a resident of the state for one year at the time the action was filed.
Court Procedures
Following the filing of the divorce complaint, the defendant is served with the divorce papers and he or she has a period of thirty days to respond. If the spouses cannot reach a mutual agreement as to the terms of the divorce including the division of property, alimony, child custody, and support, the case goes to court.
A judge will then go through all the evidence and make a final decision on the same and issue a divorce order that will contain how the above issues were resolved.
If both spouses are in consensus on all the issues that pertain to the divorce, then the process is less time-consuming and may not necessarily involve trial.
The Role of Mediation in Resolving Disputes
As is known, the process of divorce often includes negotiations and, in many situations, mediation can be an effective way of solving conflicts out of the court.
Mediation is the process where both parties have to sit with a third-party mediator and sort out all the matters of concern like property, children, and maintenance.
Same-sex couples may find mediation particularly useful where there are issues of conflict, for example, on issues of parenthood. The benefits of mediation include:
Faster Resolution
Marital mediation is fast in that the parties will agree on a solution faster than in a court trial.
Cost-Effective
Mediation is usually cheaper than litigation because it does not involve court costs and attorneys’ participation may be prolonged.
Less Stressful
The use of mediation to solve disputes is more friendly than the use of the court and has the added advantage of encouraging cooperation between the parties especially where children are involved.
Financial Implication of Same-Sex Divorce
Same-sex couples in the process of divorce have to consider several financial matters, such as the distribution of property and debts, as well as retirement benefits.
It is important to know how these aspects are dealt with in South Carolina so that one can be in a vantage position when it comes to handling the financial aspects of divorce.
Division of Assets and Liabilities
In South Carolina, the division of assets and liabilities is done under the principle of and division of property.
This means that marital property will be split equally although this is not an absolute requirement that has to be met. Marital property is the property that is acquired during the marriage, including cash, investments, houses, cars, and any other property of value.
So for same-sex couples, it is worth noting the period of the relationship, especially if they have been together during the time that the marriages were not legalized. Personal property brought into the marriage may be characterized as separate property, while property owned and accumulated during the marriage is generally considered marital property.
This can become complicated if the couple is in a domestic partnership or has cohabited before marriage.
Special Considerations for Retirement Benefits, Social Security, and Pensions
Any form of retirement benefits, Social Security, and pensions are usually considered valuable assets in marriage and therefore should be well addressed.
In a same-sex divorce, these assets are treated the same as in opposite-sex divorces, but there are some special considerations:
Retirement Benefits
Pension plans earned during the marriage including 401(k)s and IRAs are considered marital property and are subject to division.
These assets are generally split through a legal process called Qualified Domestic Relations Order (QDRO) so as not to attract any penalties or taxes.
Social Security Benefits
As for same-sex couples, receiving Social Security can sometimes be an intricate question, especially if the couple gets married later in life.
As a rule, one spouse can receive Social Security benefits depending on the other spouse’s earnings, provided that the couple has been married for a minimum of 10 years.
This applies to both same-sex and opposite-sex couples, however, same-sex couples should be aware of some issues if they were together before the marriage laws were changed.
Pensions
Also, pensions that have been earned during the marriage are considered and divided.
The court will decide how much of the pension was accumulated during the marriage and assign that part fairly between the two. Like with pensions, this may involve some figuring and a need to use a QDRO.
Common Challenges in Same-Sex Divorce Cases
Same-sex divorce cases may pose certain difficulties because of legal peculiarities and the development of family law.
Even though the laws regulating divorce are the same for all the states, same-sex couples can face certain peculiarities in South Carolina.
Biased or Misconceived Judgment from the Courts or Legal Personals
Despite the advancements in the understanding of the rights of same-sex couples, prejudice or misinterpretation from the side of courts or legal advisors might remain in some instances. This can manifest as:
Outdated Perspectives
There are courts or legal personnel who may not be well conversant with same-sex divorces and aspects such as parental rights and issues to do with equitable distribution.
Stereotypes or Prejudice
Although it is less likely, implicit bias may influence decisions as to child custody or property distribution, especially in regions that do not support same-sex marriages.
Issues Related to Legal Documents like Prenuptial or Postnuptial Agreements
Prenuptial and postnuptial agreements play a key role in divorce proceedings, but same-sex couples may face challenges related to the enforceability or interpretation of these documents:
Timing of Agreements
Marriage contracts entered into before marriage equality became a legal reality may not necessarily provide for the marriage to be recognized in all states.
This can complicate issues of enforcement of the terms where the assets’ division or spousal support is an issue.
Ambiguous Terms
If one signed a prenup or postnup agreement before the Obergefell ruling, the agreement may not even include language about same-sex marriage and can therefore be challenged during a divorce.
Couples should make sure that the agreements they have made are in accord with the current legal provisions.
We know that getting a divorce is not easy and it is one of the toughest times in one’s life. Our attorneys will always ensure that you are well-advised and that you have compassionate help and a legal advisor who will stand by you during this trying time.
At Max Hyde Law Firm our staff is always attentive to each client to guarantee that everybody gets equal attention. Let us help you navigate the legal complications that are inherent in your same-sex divorce case.
Call us at (864) 804-6330 to arrange a free consultation and learn how we can defend your interests in divorce issues such as property division, child custody and support, and alimony.
