Spartanburg Family Law Attorneys Answer Frequently Asked Questions About Divorce and Child Custody in South Carolina
If you are contemplating a divorce or are in the midst of a child custody dispute or other family law matter, you probably have lots of questions about your rights and the legal process involved. Below are answers to some of the questions the family law attorneys at Cate & Brough Law Firm encounter most frequently as we help clients in Spartanburg, Cherokee, Greenville and Union counties in divorce and other family law matters. If you have other questions, or if you need advice and assistance in a South Carolina family law case, contact our office to speak with one of our dedicated and compassionate family lawyers.
Q. Will I get my old name back after the divorce is finalized?
A. You can request a name change during the divorce or separate support and maintenance action or go through a legal proceeding at any time after the divorce to regain your former name, but unless you take this step, your name will not automatically change following the divorce. Using your old name without legally changing it is not unlawful, but it can cause problems for you in a host of areas, including with your driver’s license, tax returns, shopping, banking, reporting wages for social security benefits, and other areas.
Likewise, if you want to change your child’s name to your last name or that of a stepparent, you would need to go through a legal proceeding to do so. Note that simply changing the child’s name will not terminate the father’s parental rights, even if the child adopts the name of a stepfather, unless you go through an actual stepparent adoption.
Q. What is a QDRO and how do I get one?
A. A QDRO is a Qualified Domestic Relations Order. If the marital property to be divided in your Decree of Separate Maintenance or Divorce Decree includes a defined contribution plan, like a 401(k), or a defined benefit plan, such as a pension plan, then you may need a QDRO, which is a court order telling the plan administrator that it is okay to transfer an interest in the plan to someone other than the plan’s owner. We can help you determine if a QDRO is necessary in your case and can draft any QDRO that may be needed.
Q. What if I was pressured into signing a prenuptial agreement?
A. A prenuptial agreement that was obtained based on coercion or duress is unenforceable, and you likely do not have to be bound by its terms. In deciding whether a prenuptial agreement is enforceable, the court asks three questions: 1) Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts? 2) Is the agreement unconscionable? 3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
If these questions need to be litigated in court, the proceeding can become quite complex. If you are seeking to enforce or challenge a prenuptial agreement, make sure you are represented by knowledgeable and experienced family law attorneys who understand the factors surrounding the enforceability of prenuptial and postnuptial agreements under South Carolina law.
Q. Does a child have any say in which parent he or she will live with if the parents divorce?
A. Yes and no. South Carolina Code section 63-15-30 requires the court to consider the child’s reasonable preference in making a child custody decision. However, the weight given to the child’s preference will depend on the child’s age, experience, maturity, judgment and ability to express a preference. It is important in any divorce or child custody matter to be sensitive to the feelings of the child and try to minimize the impact of the divorce on the child.
Q. What is an uncontested Divorce?
A. An uncontested divorce is one where you and your spouse are seeking a no-fault divorce, and you both agree on all the issues to be decided in the divorce, such as child custody and visitation, support and the division of marital property (and debt). An uncontested divorce in South Carolina is known as a simple divorce, but it is really not all that simple.
To apply for an uncontested divorce, you and your spouse must have lived apart continuously for one year and meet the applicable residency requirement. The process includes filing certain papers with the court, including a summons and complaint, financial declaration, and more. Keep in mind that some forms must be signed before a notary or they will not be accepted by the court.
Once the proper papers have been served on the other spouse, a divorce can be finalized relatively quickly if the other spouse agrees or doesn’t respond to the complaint. You must still complete other papers and affidavits and attend a court hearing with a witness who can testify that the couple has been living apart for the required period of time.
Just because an uncontested divorce is called a simple divorce, don’t be fooled into thinking it is a simple matter. Cate & Brough Law Firm can provide cost-effective assistance to help you get your uncontested divorce done right the first time, without worry that the papers will be rejected by the court or cause other problems that can defeat the purpose of a simple divorce.