Domestic Relations

Question 1

Grounds for Divorce

Answer 1

D. Adultery

1. Extra-marital sexual activity
2. May be found where there is (1) opportunity and (2) disposition to commit adultery.
3. A single instance is enough and homosexual conduct counts.

E. Desertion for a period of one year

1. The willful abandonment of cohabitation for one year with no intent to return.
2. No consent between parties.

F. Physical cruelty

1. Actual personal violence or endangering the life, limb or health
2. Mental cruelty not enough

G. Habitual drunkenness

1. Habitual drunkenness requires
   a. Fixed habit of getting drunk
   b. Causing a breakdown of normal material relations
   AND
   c. The drunkenness exists at or near the time of the lawsuit
2. Note—includes other drugs; drunkenness need not be continuous

H. Living separate and apart for 1 year w/o cohabitation

1. Living separate and apart for 1 year requires:
   a. Separate domiciles (no separate bedrooms; no guest house)
   b. Intentional and continuous separation
   c. For at least 1 year prior to filing of the action
2. 1 act of sex—probably resets 1 yr time requirement

Question 2

Defenses to Divorce

Answer 2

VI. DIVORCE—DEFENSES

A. Provocation

1. Provocation occurs where the spouse would not have acted but for the other’s misconduct
2. BUT—the action must not be out of proportion w/ the provoking conduct
   B. Reconciliation
3. Unconditional forgiveness w/ resumption of the marriage in its fullest sense
4. Once reconciled, prior marital faults cannot be revived

C. Recrimination

1. Charge off-setting faults BUT action charged must also constitute a ground for divorce

D. Condonation

1. Conditional forgiveness of a previous offense; conditioned upon fault NOT reoccurring
2. Elements
   a. Forgiveness (express or implied)
   b. That is conditional
   c. Mutual intention to renew full marital relationship
   d. Full knowledge
3. Presumption: lapse of time or continuance of cohabitation w/ knowledge presumes condonation

E. Connivance
1. Falsifying fault grounds (enticing spouse to commit adultery)

F. Collusion

1. Couple conspires to manufacture fault grounds for a fraudulent, illegal or deceitful purpose
2. A court will not grant a divorce when collusion is found.

G. Insanity
1. Can be defense to adultery if unable to appreciate wrongfulness of action

Question 3

Equitable Division of Property

Answer 3

H. Apportionment / Equitable division factors

1. A court will consider the following factors in making a equitable division of property:

a. Duration of marriage
b. Marital misconduct and fault of either party
c. Health – physical and mental health of spouses
d. Financial & economic circumstances of parties
e. Contribution to marriage by each spouse
f. Need for additional training or education to achieve income potential
g. Non marital property of each spouse
h. Vested retirement benefits of each spouse
i. Separate maintenance or alimony already awarded
j. Support obligations from prior marriage
k. Child custody arrangements
l. Desirability of awarding home to custodial parent
m. Liens/encumbrances on marital property and separate debts
n. Tax aspects of divorce
o. Other factors necessary to do equity between spouses

Question 4

Custody Factors

Answer 4

X. CUSTODY

A. The best interest of the child is the primary and controlling consideration of the court in all custody cases.

B. In determining custody, the court considers:

1. Best interest of the children, welfare of the children
2. Historical primary caretaker
3. Character and conduct of parents
4. Child’s reasonable preference
5. Agreements of parents
6. Age, sex and health of children
7. Immoral conduct of parents detrimental to child
8. Domestic violence, including physical or sexual abuse
9. Religion

Question 5

Relocation of Custodial Parent Factors

Answer 5

D. Factors to consider in whether to change custody based on relocation of the custodial parent:

1. Each parent’s reasons for seeking/opposing the move;
2. Quality of relationship btwn child & each parent;
3. Impact of move on quality of child’s future contact w/ non-custodial parent;
4. Degree to which custodial parent & child’s life enhanced by the move;
5. Feasibility of new suitable visitation arrangements;
6. Potential advantages of the proposed move;
7. Likelihood move would substantially improve custodial parent’s quality of life;
8. Whether cost of transportation is financially feasible for either parent;
9. BEST INTERESTS of child

Question 6

Deviation from Support

Answer 6

D. Factors for deviation from support:

1. Alimony
2. Agreements between parents
3. Children’s income
4. Consumer debt
5. Equitable distribution of property
6. Education expenses for children or spouse
7. Families with more than six children
8. Mandatory deduction of retirement pensions and union dues
9. Monthly fixed payment imposed by court or operation of law
10. Non court ordered child support from another relationship
11. Substantial disparity of non-custodial parents income
12. Support obligation for other dependants living with parent
13. Un-reimbursed extraordinary medical expenses/dental expenses (parent and child)

Question 7

UCCJEA

Answer 7

G. Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)

1. SC has jurisdiction to make an initial child custody determination only if:
   a. SC is the home state of the child a commencement of proceeding, OR
   b. Was the home state w/in prior 6 months and child is not in not in SC, BUT parent is still in SC.
2. Modification of another state’s custody order
   a. SC will not modify another state’s order UNLESS the court has jurisdiction to make an original determination
3. Emergency jurisdiction
   a. SC has temporary emergency jurisdiction if the child is present in SC and the child has been abandoned OR its is necessary in an emergency to protect the child

Question 8

UIFSA

Answer 8

D. Uniform Interstate Family Support Act (UIFSA)

1. Allows people who move to SC to enforce support payments against out of state obligor
2. Law of state in which obligor resides controls; however, action to enforce can be brought here;
3. Order can NOT be modified in SC however unless:
   a. neither obligee nor obligor reside in the issuing state and ∆ is subject to SC jurisdiction;
   b. there is personal jurisdiction & parties have agreed to let SC court modify

Question 9

Who Can Adopt

Answer 9

C. Who can adopt—any SC resident BUT may be non-resident IF:

1. Relative
2. Unusual or special circumstances where best interest of child would be served by placement out of state
3. One adoptive parent is in the military, stationed in SC
4. Special needs child
5. Foster care
6. Notoriety making placement outside state in child’s best interest

Question 10

Termination of Parental Rights

Answer 10

C. Termination of parental rights: The family court may order the termination of parental rights (TPR) if it serves the best interests of the child and the court finds any of the following:

1. child has been harmed, and the home cannot be safe w/in 12 months
2. presumptive legal father is not the biological father, and the welfare of the child can best be served by TPR of the presumptive legal father
3. child placed into protective custody, has been out of the home for 6 months, and the parent has not remedied the conditions for which he was removed
4. child lived outside the home of either parent for a period of 6 months, and during that period, the parent willfully failed to visit the child
5. child lived outside the home for a period of 6 months, and either parent has failed to support the child
6. child has been in foster care under the responsibility of the state for 15 of the last 22 months
7. parent has a diagnosable condition (like alcoholism) that is unlikely to change w/in a reasonable time and that makes the parent unlikely to provide minimally acceptable care for the child
8. parent has willfully abandoned or surrendered physical possession of the child without making adequate arrangements for the child’s needs and care
9. there was physical abuse of the child resulting in death or admission to the hospital for in-patient care, and the parent has been convicted or plead nolo to committing the offense against the child, CDV, or common law assault and battery of a high and aggravated nature.
10. A guilty or nolo plea or a conviction for the murder of the child’s other parent.

Question 11

Who Must Consent

Answer 11

1. Unwed father
   a. IF child over 6 months and he is paying support AND visiting at least monthly OR has regular communication
   b. IF child is less than 6 months and father lived with mother OR paid support.
2. In adult adoption, adult adoptee and adoptive parent’s spouse
3. Legal guardian or agency when both parents are deceased OR parental rights have been terminated
4. Mother of child born when child not married
5. Minor over age of 14 UNLESS (1) no mental capacity to consent or (2) consent not in child’s best interest.
6. Agency placing the child
7. Parents or the surviving parent of child conceived during marriage

Question 12

Alimony Factors

Answer 12

1. Duration of marriage & ages at marriage and divorce
2. Marital misconduct or fault
3. Health – mental and physical
4. Employment history and earning potential
5. Educational background and need for additional training
6. Martial & non-marital properties
7. Standard of living during marriage
8. Current and reasonably expected expenses
9. Current and reasonably expected earnings
10. Support obligations from prior marriage
11. Child custody
12. Tax consequences
13. Other factors court deems relevant